Datasets:

YSFarag

/

SuperScotus

like 0

1990_89-1330

Justice STEVENS delivered the opinion of the Court.Labor unions have a statutory duty to distribute campaign literature to their membership in response to the reasonable request of any candidate for union office. In this case the union denied such a request because the candidate wanted Page 498 U. S. 468 the literature mailed in advance of the union's nominating convention and a union rule prohibited such preconvention mailing. The question presented is whether a court must evaluate the reasonableness of the union's rule before it decides whether the candidate's request was reasonable. Like the Court of Appeals and the District Court, we conclude that the statute requires us to give a negative answer to that question.IThe International Organization of Masters, Mates & Pilots (Union) represents about 8,500 members employed in, or in work related to, the maritime industry. Many of the members are away from home for extended periods of time because they work on ships that ply the high seas. Elections of Union officers are conducted every four years by means of a mail ballot. An International Ballot Committee, which oversees the election, is elected at the convention, and an Impartial Balloting Agency, which conducts the balloting, is also selected by the delegates at the convention. App. 36, 25-26. The ballots are mailed to the membership no later than 30 days [Footnote 1] after the convention at which candidates are nominated, and must be returned within the ensuing 90-day period. Union rules authorize the mailing of campaign literature at the candidate's expense after nominations have been made, but not before. [Footnote 2] Any Union member in good standing Page 498 U. S. 469 may be a candidate; moreover, a candidate may nominate himself.Respondent was an unsuccessful candidate for Union office in 1980 and 1984. On May 9, 1988, he formally advised the International Secretary-Treasurer of the Union that he would be a candidate in the election to be held in the fall, and requested that the Union provide him with mailing labels containing the names and addresses of voting Union members, to be given to a mailing service so that he could arrange, at his own expense, for a timely mailing of "election literature prior to the Convention." Id. at 41.On June 2, 1988, respondent wrote to the International President of the Union advising him that he would be a candidate for that office, that he intended to send his first mailing to the membership on July 6, and that he had not "had the courtesy of a reply" to his earlier letter to the Secretary-Treasurer. Id. at 43. Five days later, the Secretary-Treasurer provided respondent with the following explanation as to why his request could not be accommodated:"Although I can understand your eagerness in wanting to send out your campaign literature early, please be advised that as soon as the rules are established for mailing campaign literature, all candidates will be notified at the same time.""As the practice has been in the past, and the Constitution prescribes, the IOMM & P Convention is the event in which all candidates officially are nominated to run for a particular office. Only after the Convention takes place, and when the Impartial Balloting Agency is designated, will the mailing agency to handle campaign Page 498 U. S. 470 literature be designated. Please refer to Article V, Section 10 of the International Constitution. This procedure has been established so that each candidate will have a fair and equal amount of time in which to adequately reach the membership and to prohibit any one candidate from having an edge over the other."Id. at 44-45.On June 15, respondent appealed that denial to the Union General Executive Board, [Footnote 3] repeating his desire for action by July 5. Id. at 46. On July 6, the General Executive Board denied his appeal. Five days later, respondent filed this action under § 401(c) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 532, 29 U.S.C. § 481(c). [Footnote 4] In his complaint, respondent alleged that the convention Page 498 U. S. 471 was scheduled to begin on August 22 and that he wanted"to encourage the membership to begin consideration of his candidacy and of the issues he hope[d] to raise during his campaign before the deadline for making nominations, both in order to persuade the membership that he should be nominated and elected, and to attract support from individuals who might otherwise be inclined to run for office themselves or to encourage other members to do so."App. 8-9. [Footnote 5]Two weeks later, after both sides had filed affidavits and a hearing had been held, the District Court entered a preliminary injunction directing the Union and its two main officers "within forty-eight hours, and again in response to any further requests" to deliver the names and addresses of the Union members to a mailing service acceptable to the parties. Id. at 74. The order also provided that respondent should pay for the costs of the mailing service. Id. at 74-75. The District Court based its decision on alternative grounds. First, it held that the clear language of § 401(c) required it to focus on the reasonableness of respondent's request, rather than on the reasonableness of the Page 498 U. S. 472 Union rule under which the request was denied. In addition, the District Court concluded that the request to make a campaign distribution approximately one month before the convention was "clearly reasonable," and that, if the application of a Union rule resulted in the rejection of such a request, the rule was invalid. Id. at 77.Second, and alternatively, the District Court held that, even if the standard of review is the reasonableness of the Union rule, rather than the reasonableness of respondent's request, the rule was unreasonable because preconvention campaigning was essential to introducing a candidate and his ideas to Union members and because the post-convention ballot period of 90 days was inadequate for effective campaigning in a Union whose members' work kept them away from home for substantial periods of time.Id. at 77-78.The United States Court of Appeals for the Fourth Circuit affirmed. Brown v. Lowen, 857 F.2d 216 (1988). [Footnote 6] The majority held that the question whether respondent was entitled to have his request granted depended "entirely on whether his request may be said to be reasonable." Id. at 217. This conclusion involved "nothing more than a reading of the plain language of the statute," ibid., and was buttressed by the statutory purpose of ensuring Union democracy:"When the union bureaucracy has exclusive control of the union membership lists, with addresses, as in this case, and that bureaucracy has continuous contact with the union membership and particularly the local union officers, the advantages of incumbency over any attempt of an insurgent to promote his candidacy before or after the quadrennial nominating convention of the union are obvious. By requiring unions to comply with all reasonable requests of candidates for access to the union lists, these advantages of incumbency are reasonably moderated. And it was to provide that very moderation of the advantages of incumbency which was the intention of the Act."Id. at 218. The majority found nothing unreasonable in respondent's request, and rejected the Union's argument that it could limit the time in which literature could be distributed in order to Page 498 U. S. 473 avoid discrimination, "since any candidate, whether an incumbent or an insurgent, has the same rights as the plaintiff." Ibid.The dissenting judge found nothing unreasonable or discriminatory in the Union's election procedures. According to the dissent, a candidate's request that did not conform to a reasonable union rule was itself "per se unreasonable." Id. at 219. After a rehearing en banc, [Footnote 7] by a vote of 8 to 2, the Court of Appeals adopted the majority's holding and affirmed the District Court. Brown v. Lowen, 889 F.2d 58 (1989) (per curiam ). We granted certiorari, 496 U.S. 935 (1990), to resolve the conflict between the Fourth Circuit's decision in this case and an earlier decision by the Third Circuit in Donovan v. Metropolitan District Council of Carpenters, 797 F.2d 140 (1986).IIThree important propositions are undisputed. First, even though respondent's campaign literature has been distributed, and even though he lost the election by a small margin, the case is not moot. Respondent has run for office before, and may well do so again. [Footnote 8] The likelihood that the Union's rule would again present an obstacle to a preconvention mailing by respondent makes this controversy sufficiently capable of repetition to preserve our jurisdiction. See, e.g., Moore v. Ogilvie, 394 U. S. 814, 394 U. S. 816 (1969) ("The problem is therefore capable of repetition, yet evading review,' Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 219 U. S. 515"). Page 498 U. S. 474Second, even though respondent's candidacy had not been certified at a post-convention meeting of the Union Impartial Ballot Committee in accordance with the Union's formal election procedures, it is clear that respondent was a "bona fide candidate for office" within the meaning of the statute when he made his preconvention request to distribute campaign literature. 29 U.S.C. § 481(c). Section 401(e) of the LMRDA guarantees the right of every union member in good standing to be a candidate subject to the "reasonable qualifications uniformly imposed" by the Union. [Footnote 9] The Union, in accordance with our opinions in Wirtz v. Hotel Employees, 391 U. S. 492 (1968), and Steelworkers v. Usery, 429 U. S. 305 (1977), does not contend that it would be reasonable to refuse to recognize an eligible candidate until after the nominating process is completed. As we explained in Wirtz:"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. 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 Page 498 U. S. 475 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."391 U.S. at 391 U. S. 499 (footnote omitted).Third, apart from the fact that respondent's request violated the Union rule against preconvention mailings, there is no basis for contending that the request was not "reasonable" within the meaning of § 401(c). No question is raised about respondent's responsibility for the cost of the mailing or about any administrative problem in complying with his request. The sole issue is whether the Union rule rendered an otherwise reasonable request unreasonable.IIIThe text, structure and purpose of Title IV of the LMRDA all support the conclusion that our inquiry should focus primarily on the reasonableness of the candidate's request, rather than on the reasonableness of the Union's rule curtailing the period in which campaign literature may be mailed.The language of § 401(c) explicitly instructs the Union and its officers"to comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate's expense campaign literature. . . ."29 U.S.C. § 481(c) (emphasis added). The language of the statute plainly requires unions to comply with "all reasonable requests," and just as plainly does not require union members to comply with "all reasonable rules" when making such requests. Unlike the member's right to run for union office, which is created by § 401(e) and made expressly subject to the "reasonable qualifications uniformly imposed" by the Union, and unlike the member's speech and voting rights, which are governed by sections of the LMRDA such as Page 498 U. S. 476 §§ 101(a)(1) and 101(a)(2), 29 U.S.C. §§ 411(a)(1) and 411(a)(2), and are made "subject to reasonable rules" in the Union constitution, the § 401(c) right is unqualified. [Footnote 10] Moreover, unlike other rights created by Title IV that are judicially enforceable only in actions brought by the Secretary of Labor, the § 401(c) right is directly enforceable in an action brought by the individual Union member. Thus, as the language of the statute suggests, Congress gave this right pertaining to campaign literature a special status that it did not confer upon other rights it granted to Union members.The special purpose of Title IV was to insure free and democratic union elections. See Wirtz v. Glass Bottle Blowers, 389 U. S. 463, 389 U. S. 470 (1968). The statutory guarantees are specifically designed to offset the "inherent advantage over potential rank and file challengers" possessed by incumbent union leadership. Id. at 389 U. S. 474. One of the advantages identified by Archibald Cox in his testimony in support of the Act is the incumbents' control of "the union newspaper, which is the chief vehicle for communication with the members." [Footnote 11] A broad interpretation of the candidate's right to distribute literature commenting on the positions advocated in the union press is consistent with the statute's basic purpose.The Union advances three related arguments in support of its position that mailing requests should be considered unreasonable if they do not comply with nondiscriminatory rules Page 498 U. S. 477 that have been adopted through democratic procedures. First, the Union correctly notes that any fair election must be conducted in accordance with predetermined rules, and that the reasonableness of any election-related request must be evaluated in view of those rules. Second, it argues that the rule at issue furthers its duty to avoid discrimination in the conduct of the election. Third, it relies on the congressional policy of avoiding unnecessary intervention in the internal affairs of labor unions.We find these arguments unpersuasive. Rules must, of course, be adopted to govern the process of nominating candidates, casting ballots, and counting votes. Moreover, in connection with the process of distributing campaign literature to the membership, rules that establish the procedures for making mailing requests, selecting a mailing agent, and paying the cost of the mailing, are no doubt desirable. The justifications underlying such rules (uniformity of treatment, reduction of administrative burdens) and the fair notice provided to candidates by the existence and publication of such rules all would be relevant in determining whether a request is reasonable. But these concerns in no way dictate a rule prohibiting mailings before a nominating convention. Here, in particular, a preconvention mailing would not place any burden on the Union, because the candidate must assume the cost of the mailing. Moreover, in union elections, as in political elections, it is fair to assume that more, rather than less, freedom in the exchange of views will contribute to the democratic process. Here, respondent, by his request for a preconvention mailing, hoped to provide Union members with "more information," with which to inform their voting decisions. App. 14.The concern about discrimination among individual candidates is surely satisfied by a rule that allows any candidate access to the membership before the convention as well as by a rule that denies all candidates such access. Indeed, arguably opening the channels of communication to all candidates Page 498 U. S. 478 as soon as possible better serves the interest in leveling the playingfield, because it offsets the inherent advantage that incumbents and their allies may possess through their control of the union press and the electoral lists during the four years in which they have been in office.The policy of avoiding unnecessary intervention into internal union affairs is reflected in several provisions of the LMRDA. We have already referred to the fact that the right to hold union office protected by § 401(e) is "subject to . . . reasonable qualifications uniformly imposed." 29 U.S.C. § 481(e). Similarly, the provision in § 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1), governing the right to nominate candidates, to vote in elections, and to attend union meetings is expressly made subject to the union's "reasonable rules and regulations." Moreover, the member's right to speak freely at union meetings is "subject to the organization's established and reasonable rules pertaining to the conduct of meetings." 29 U.S.C. § 411(a)(2). These expressions of respect for internal union rules are notably absent in § 401(c).Section 401(c) simply prescribes a straightforward test: Is the candidate's distribution request reasonable? Having dispensed with the Union's argument that a request is per se unreasonable simply because it conflicts with a Union rule, we need only note again that, in this case, the Union does not advance any other reason for suggesting that respondent's request was unreasonable. The Union does not contend, for example, that respondent's request caused administrative or financial hardship to the Union, or that it discriminated against any other candidate. In the absence of any showing by the Union as to the unreasonableness of the request, we hold, consistent with the lower courts' findings, that respondent's request was reasonable, and must be granted.The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtInt'l Org. of MM & P v. Brown, 498 U.S. 466 (1991)International Organization of Masters, Mates & Pilots v. BrownNo. 89-1330Argued Nov. 27, 1990Decided Feb. 20, 1991498 U.S. 466SyllabusRespondent, an unsuccessful candidate in prior elections of petitioner Union, advised the Union that he would be a candidate in the upcoming 1988 election and requested that he be provided with mailing labels so that he could arrange for a timely mailing of election literature to members prior to the Union's nominating convention. The request was denied because a Union rule prohibited such preconvention mailings. Respondent filed suit under § 401(c) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), which places every union"under a duty, enforceable at the suit of any bona fide candidate . . . , to comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate's expense campaign literature. . . ."The District Court entered a preliminary injunction in respondent's favor, ruling, inter alia, that § 401(c)'s clear language required it to focus on the reasonableness of respondent's request rather than on the reasonableness of the Union rule under which the request was denied, that the request was clearly reasonable, and alternatively, that the Union rule was invalid. The Court of Appeals affirmed.Held: Section 401(c) does not require a court to evaluate the reasonableness of a union rule before it decides whether a candidate's request was reasonable. Pp. 498 U. S. 473-478.(a) It is undisputed, first, that the case is not moot, even though respondent's campaign literature has been distributed and he lost the 1988 election, because he has run for office before, and may well do so again, and the likelihood that the Union rule would again present an obstacle to his preconvention mailing makes this controversy sufficiently capable of repetition to preserve this Court's jurisdiction; second, that respondent was a "bona fide candidate" within § 401(c)'s meaning when he made his preconvention request; and, third, that there is no basis for contending that the request was not "reasonable" under § 401(c) apart from the fact that it violated the Union rule. Pp. 498 U. S. 473-475.(b) The text, structure, and purpose of Title IV of the LMRDA all demonstrate that § 401(c) simply prescribes a straightforward test: Is the candidate's distribution request reasonable? The section's language plainly requires unions to comply with "all reasonable requests" (emphasis Page 498 U. S. 467 added), and just as plainly does not require union members to comply with "all reasonable rules" when making such requests. Moreover, Congress gave the candidate's § 401(c) right a special status not conferred upon other Title IV rights granted union members, which are expressly made subject to "reasonable" conditions imposed by unions, and are judicially enforceable only in actions brought by the Secretary of Labor. A broad interpretation of the candidate's right also is consistent with the statute's basic purpose of insuring free and democratic union elections by offsetting the inherent advantage incumbent union leadership has over potential rank and file challengers. Furthermore, the Union's arguments supporting its position that a request is per se unreasonable simply because it conflicts with a Union rule are unpersuasive. The Union does not advance any other reason for suggesting that respondent's request was unreasonable; thus, the request must be granted. Pp. 498 U. S. 475-478.889 F.2d 58 (C.A.4 1989), affirmed.STEVENS, J., delivered the opinion for a unanimous Court.

1994_93-1543

354 McKENNON v. NASHVILLE BANNER PUBLISHING CO.R. Eddie Wayland argued the cause for respondent.With him on the brief was Elizabeth B. Marney.*JUSTICE KENNEDY delivered the opinion of the Court. The question before us is whether an employee discharged in violation of the Age Discrimination in Employment Act of 1967 is barred from all relief when, after her discharge, the employer discovers evidence of wrongdoing that, in any event, would have led to the employee's termination on lawful and legitimate grounds.IFor some 30 years, petitioner Christine McKennon worked for respondent Nashville Banner Publishing Company. She was discharged, the Banner claimed, as part of a work force reduction plan necessitated by cost considerations. McKennon, who was 62 years old when she lost her job, thought another reason explained her dismissal: her age. She filed suit in the United States District Court for the Middle District of Tennessee, alleging that her discharge violated the Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq. (1988*Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Marsha Berzon and Laurence Gold; for the Lawyers' Committee for Civil Rights Under Law et al. by William F. Sheehan, Steven R. Shapiro, Helen Hershkoff, Michael A. Cooper, Norman Redlich, Thomas J. Henderson, Richard T. Seymour, Sharon R. Vinick, and Cathy Ventrell-Monsees; and for the Women's Legal Defense Fund et al. by Judith L. Lichtman and Donna R. LenhoffBriefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Zachary D. Fasman, Charles A. Shanor, Kelly J. Koelker, Stephen A. Bokat, and Robin S. Conrad; and for the Equal Employment Advisory Council et al. by Douglas S. McDowell, Ann Elizabeth Reesman, Lee T. Paterson, Dwight H. Vincent, John F. Sturm, Rene P. Milam, and Peter G. Stone.Jeffrey Robert White, Nancy Erika Smith, and Neil Mullin filed a brief for the National Employment Lawyers Association et al. as amici curiae.355ed. and Supp. V). The ADEA makes it unlawful for any employer:"to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U. S. C. § 623(a)(1).McKennon sought a variety of legal and equitable remedies available under the ADEA, including backpay. App. lOa-lla.In preparation of the case, the Banner took McKennon's deposition. She testified that, during her final year of employment, she had copied several confidential documents bearing upon the company's financial condition. She had access to these records as secretary to the Banner's comptroller. McKennon took the copies home and showed them to her husband. Her motivation, she averred, was an apprehension she was about to be fired because of her age. When she became concerned about her job, she removed and copied the documents for "insurance" and "protection." Deposition, Dec. 18, 1991, Record, Docket Entry No. 39, Vol. 2, p. 241. A few days after these deposition disclosures, the Banner sent McKennon a letter declaring that removal and copying of the records was in violation of her job responsibilities and advising her (again) that she was terminated. The Banner's letter also recited that had it known of McKennon's misconduct it would have discharged her at once for that reason.For purposes of summary judgment, the Banner conceded its discrimination against McKennon. The District Court granted summary judgment for the Banner, holding that McKennon's misconduct was grounds for her termination and that neither backpay nor any other remedy was available to her under the ADEA. 797 F. Supp. 604 (MD Tenn. 1992). The United States Court of Appeals for the Sixth Circuit affirmed on the same rationale. 9 F.3d 539 (1993). We356356 McKENNON v. NASHVILLE BANNER PUBLISHING CO.granted certiorari, 511 U. S. 1106 (1994), to resolve conflicting views among the Courts of Appeals on the question whether all relief must be denied when an employee has been discharged in violation of the ADEA and the employer later discovers some wrongful conduct that would have led to discharge if it had been discovered earlier. Compare Welch v. Liberty Machine Works, Inc., 23 F.3d 1403 (CA8 1994); O'Driscoll v. Hercules Inc., 12 F.3d 176 (CAlO 1994); 9 F.3d 539 (CA6 1993) (case below); Washington v. Lake County, 969 F.2d 250 (CA71992); Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409 (CA6 1992); Summers v. State Farm Mutual Automobile Ins. Co., 864 F.2d 700 (CAlO 1988); Smallwood v. United Air Lines, Inc., 728 F.2d 614 (CA4), cert. denied, 469 U. S. 832 (1984), with Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221 (CA3 1994); Kristufek v. Hussman Foodservice Co., Toastmaster Div., 985 F.2d 364 (CA7 1993); Wallace v. Dunn Construction Co., 968 F.2d 1174 (CAll 1992), vacated pending rehearing en banc, 32 F.3d 1489 (1994). We now reverse.IIWe shall assume, as summary judgment procedures require us to assume, that the sole reason for McKennon's initial discharge was her age, a discharge violative of the ADEA. Our further premise is that the misconduct revealed by the deposition was so grave that McKennon's immediate discharge would have followed its disclosure in any event. The District Court and the Court of Appeals found no basis for contesting that proposition, and for purposes of our review we need not question it here. We do question the legal conclusion reached by those courts that afteracquired evidence of wrongdoing which would have resulted in discharge bars employees from any relief under the ADEA. That ruling is incorrect.The Court of Appeals considered McKennon's misconduct, in effect, to be supervening grounds for termination. That357may be so, but it does not follow, as the Court of Appeals said in citing one of its own earlier cases, that the misconduct renders it "'irrelevant whether or not [McKennon] was discriminated against.'" 9 F. 3d, at 542, quoting MilliganJensen v. Michigan Technological Univ., 975 F.2d 302, 305 (CA6 1992), cert. granted, 509 U. S. 943, cert. dism'd, 509 U. S. 903 (1993). We conclude that a violation of the ADEA cannot be so altogether disregarded.The ADEA, enacted in 1967 as part of an ongoing congressional effort to eradicate discrimination in the workplace, reflects a societal condemnation of invidious bias in employment decisions. The ADEA is but part of a wider statutory scheme to protect employees in the workplace nationwide. See Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. (1988 ed. and Supp. V) (race, color, sex, national origin, and religion); the Americans with Disabilities Act of 1990, 42 U. S. C. § 12101 et seq. (1988 ed., Supp. V) (disability); the National Labor Relations Act, 29 U. S. C. § 158(a) (union activities); the Equal Pay Act of 1963, 29 U. S. C. § 206(d) (sex). The ADEA incorporates some features of both Title VII and the Fair Labor Standards Act of 1938, which has led us to describe it as "something of a hybrid." Lorillard v. Pons, 434 U. S. 575, 578 (1978). The substantive, antidiscrimination provisions of the ADEA are modeled upon the prohibitions of Title VII. See Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 121 (1985); Lorillard v. Pons, supra, at 584. Its remedial provisions incorporate by reference the provisions of the Fair Labor Standards Act of 1938. 29 U. S. C. § 626(b). When confronted with a violation of the ADEA, a district court is authorized to afford relief by means of reinstatement, backpay, injunctive relief, declaratory judgment, and attorney's fees. Ibid.; see also Lorillard v. Pons, supra, at 584. In the case of a willful violation of the Act, the ADEA authorizes an award of liquidated damages equal to the backpay award. 29 U. S. C. § 626(b). The Act also gives federal courts the358358 McKENNON v. NASHVILLE BANNER PUBLISHING CO.discretion to "grant such legal or equitable relief as may be appropriate to effectuate the purposes of [the Act]." Ibid.The ADEA and Title VII share common substantive features and also a common purpose: "the elimination of discrimination in the workplace." Oscar Mayer & Co. v. Evans, 441 U. S. 750, 756 (1979). Congress designed the remedial measures in these statutes to serve as a "spur or catalyst" to cause employers "to self-examine and to selfevaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges" of discrimination. Albemarle Paper Co. v. Moody, 422 U. S. 405, 417-418 (1975) (internal quotation marks and citation omitted); see also Franks v. Bowman Transp. Co., 424 U. S. 747, 763 (1976). Deterrence is one object of these statutes. Compensation for injuries caused by the prohibited discrimination is another. Albemarle Paper Co. v. Moody, supra, at 418; Franks v. Bowman Transp. Co., supra, at 763-764. The ADEA, in keeping with these purposes, contains a vital element found in both Title VII and the Fair Labor Standards Act: It grants an injured employee a right of action to obtain the authorized relief. 29 U. S. C. § 626(c). The private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the ADEA. See Alexander v. Gardner-Denver Co., 415 U. S. 36, 45 (1974) ("[T]he private litigant [in Title VII] not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices"); see also Teamsters v. United States, 431 U. S. 324, 364 (1977). It would not accord with this scheme if afteracquired evidence of wrongdoing that would have resulted in termination operates, in every instance, to bar all relief for an earlier violation of the Act.The objectives of the ADEA are furthered when even a single employee establishes that an employer has discriminated against him or her. The disclosure through litigation of incidents or practices that violate national policies re-359specting nondiscrimination in the work force is itself important, for the occurrence of violations may disclose patterns of noncompliance resulting from a misappreciation of the Act's operation or entrenched resistance to its commands, either of which can be of industry-wide significance. The efficacy of its enforcement mechanisms becomes one measure of the success of the Act.The Court of Appeals in this case relied upon two of its earlier decisions, Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409 (CA6 1992); Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (CA6 1992), and the opinion of the Court of Appeals for the Tenth Circuit in Summers v. State Farm Mutual Automobile Ins. Co., 864 F. 2d 700 (1988). Consulting those authorities, it declared that it had "firmly endorsed the principle that after-acquired evidence is a complete bar to any recovery by the former employee where the employer can show it would have fired the employee on the basis of the evidence." 9 F. 3d, at 542. Summers, in turn, relied upon our decision in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), but that decision is inapplicable here.In Mt. Healthy we addressed a mixed-motives case, in which two motives were said to be operative in the employer's decision to fire an employee. One was lawful, the other (an alleged constitutional violation) unlawful. We held that if the lawful reason alone would have sufficed to justify the firing, the employee could not prevail in a suit against the employer. The case was controlled by the difficulty, and what we thought was the lack of necessity, of disentangling the proper motive from the improper one where both played a part in the termination and the former motive would suffice to sustain the employer's action. Id., at 284-287.That is not the problem confronted here. As we have said, the case comes to us on the express assumption that an unlawful motive was the sole basis for the firing. McKennon's misconduct was not discovered until after she had been360360 McKENNON v. NASHVILLE BANNER PUBLISHING CO.fired. The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason. Mixed-motive cases are inapposite here, except to the important extent they underscore the necessity of determining the employer's motives in ordering the discharge, an essential element in determining whether the employer violated the federal antidiscrimination law. See Price Waterhouse v. Hopkins, 490 U. S. 228, 252 (1989) (plurality opinion) (employer's legitimate reason for discharge in mixed-motive case will not suffice "if that reason did not motivate it at the time of the decision"); id., at 260-261 (White, J., concurring in judgment); id., at 261 (O'CONNOR, J., concurring in judgment). As has been observed, "proving that the same decision would have been justified ... is not the same as proving that the same decision would have been made." Id., at 252 (plurality opinion) (internal quotation marks and citations omitted); see also id., at 260-261 (White, J., concurring in judgment).Our inquiry is not at an end, however, for even though the employer has violated the Act, we must consider how the after-acquired evidence of the employee's wrongdoing bears on the specific remedy to be ordered. Equity's maxim that a suitor who engaged in his own reprehensible conduct in the course of the transaction at issue must be denied equitable relief because of unclean hands, a rule which in conventional formulation operated in limine to bar the suitor from invoking the aid of the equity court, 2 S. Symons, Pomeroy's Equity Jurisprudence § 397, pp. 90-92 (5th ed. 1941), has not been applied where Congress authorizes broad equitable relief to serve important national policies. We have rejected the unclean hands defense "where a private suit serves important public purposes." Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 138 (1968) (Sherman and Clayton Antitrust Acts). That does not mean, however, the employee's own misconduct is irrelevant to all the reme-361dies otherwise available under the statute. The statute controlling this case provides that "the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for [amounts owing to a person as a result of a violation of this chapter]." 29 U. S. C. § 626(b); see also § 216(b). In giving effect to the ADEA, we must recognize the duality between the legitimate interests of the employer and the important claims of the employee who invokes the national employment policy mandated by the Act. The employee's wrongdoing must be taken into account, we conclude, lest the employer's legitimate concerns be ignored. The ADEA, like Title VII, is not a general regulation of the workplace but a law which prohibits discrimination. The statute does not constrain employers from exercising significant other prerogatives and discretions in the course of the hiring, promoting, and discharging of their employees. See Price Waterhouse v. Hopkins, supra, at 239 ("Title VII eliminates certain bases for distinguishing among employees while otherwise preserving employers' freedom of choice"). In determining appropriate remedial action, the employee's wrongdoing becomes relevant not to punish the employee, or out of concern "for the relative moral worth of the parties," Perma Life Mufflers, Inc. v. International Parts Corp., supra, at 139, but to take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee's wrongdoing.The proper boundaries of remedial relief in the general class of cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case. We do conclude that here, and as a general rule in cases of this type,362362 McKENNON v. NASHVILLE BANNER PUBLISHING CO.neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.The proper measure of backpay presents a more difficult problem. Resolution of this question must give proper recognition to the fact that an ADEA violation has occurred which must be deterred and compensated without undue infringement upon the employer's rights and prerogatives. The object of compensation is to restore the employee to the position he or she would have been in absent the discrimination, Franks v. Bowman Transp. Co., 424 U. S., at 764, but that principle is difficult to apply with precision where there is after-acquired evidence of wrongdoing that would have led to termination on legitimate grounds had the employer known about it. Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit. The beginning point in the trial court's formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. In determining the appropriate order for relief, the court can consider taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party. An absolute rule barring any recovery of backpay, however, would undermine the ADEA's objective of forcing employers to consider and examine their motivations, and of penalizing them for employment decisions that spring from age discrimination.Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would363have been terminated on those grounds alone if the employer had known of it at the time of the discharge. The concern that employers might as a routine matter undertake extensive discovery into an employee's background or performance on the job to resist claims under the Act is not an insubstantial one, but we think the authority of the courts to award attorney's fees, mandated under the statute, 29 U. S. C. §§ 216(b), 626(b), and to invoke the appropriate provisions of the Federal Rules of Civil Procedure will deter most abuses.The judgment is reversed, and the case is remanded to the Court of Appeals for the Sixth Circuit for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1994SyllabusMcKENNON v. NASHVILLE BANNER PUBLISHING CO.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 93-1543. Argued November 2, 1994-Decided January 23,1995Alleging that her discharge by respondent Nashville Banner Publishing Company violated the Age Discrimination in Employment Act of 1967 (ADEA), petitioner McKennon filed suit seeking a variety of legal and equitable remedies available under the ADEA, including backpay. After she admitted in her deposition that she had copied several of the Banner's confidential documents during her final year of employment, the District Court granted summary judgment for the company, holding that McKennon's misconduct was grounds for her termination and that neither backpay nor any other remedy was available to her under the ADEA. The Court of Appeals affirmed on the same rationale.Held: An employee discharged in violation of the ADEA is not barred from all relief when, after her discharge, her employer discovers evidence of wrongdoing that, in any event, would have led to her termination on lawful and legitimate grounds had the employer known of it. Pp. 356-363.(a) Such after-acquired evidence is not a complete bar to ADEA recovery. Even if the employee's misconduct may be considered to be supervening grounds for termination, the ADEA violation that prompted the discharge cannot be altogether disregarded. The Act's remedial provisions, 29 U. S. C. § 626(b); see also § 216(b), are designed both to compensate employees for injuries caused by prohibited discrimination and to deter employers from engaging in such discrimination. The private litigant who seeks redress for his or her injuries vindicates both of these objectives, and it would not accord with this scheme if after-acquired evidence of wrongdoing barred all relief. Mt. Healthy City Ed. of Ed. v. Doyle, 429 U. S. 274, 284-287, distinguished. Pp. 356-360.(b) Nevertheless, after-acquired evidence of the employee's wrongdoing must be taken into account in determining the specific remedy, lest the employer's legitimate concerns be ignored. Because the ADEA simply prohibits discrimination, and does not constrain employers from exercising significant other prerogatives and discretions in the usual course of hiring, promoting, and discharging employees, employee wrongdoing is relevant in taking due account of such lawful preroga-353tives and the employer's corresponding equities arising from the wrongdoing. pp.360-361.(c) The proper boundaries of remedial relief in cases of this type must be addressed on a case-by-case basis. However, as a general rule, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds. The proper measure of backpay presents a more difficult problem. Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, it cannot be required to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if it might have gone undiscovered absent the suit. The beginning point in formulating a remedy should therefore be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. The court can also consider any extraordinary equitable circumstances that affect the legitimate interests of either party. Pp.361-362.(d) Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone had the employer known of it at the time of the discharge. The concern that employers might routinely undertake extensive discovery into an employee's background or job performance to resist ADEA claims is not insubstantial, but the courts' authority to award attorney's fees under §§ 216(b) and 626(b) and to invoke the appropriate provisions of the Federal Rules of Civil Procedure will likely deter most abuses. Pp. 362-363.9 F.3d 539, reversed and remanded.KENNEDY, J., delivered the opinion for a unanimous Court.Michael E. Terry argued the cause for petitioner. With him on the briefs were Elaine R. Jones, Theodore M. Shaw, Charles Stephen Ralston, and Eric Schnapper.Irving L. Gornstein argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Deputy Solicitor General Bender, Kent L. Jones, Dennis J. Dimsey, Mark L. Gross, James R. Neely, Jr., Gwendolyn Young Reams, and Carolyn L. Wheeler.354Full Text of Opinion

1981_80-1251

JUSTICE BRENNAN delivered the opinion of the Court.Section 1561(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 1561(a), limits a "controlled group of corporations" to a single corporate surtax exemption. [Footnote 1] Section 1563(a)(2) provides that a "controlled group of corporations" includes a "brother-sister controlled group," defined as"[t]wo or more corporations if 5 or fewer persons . . . own . . . stock possessing (A) at least 80 percent of the total combined voting power . . . or at least 80 percent of the total value . . . of each corporation, and (B) more than 50 percent of the total combined voting power . . . or more than 50 percent of the total value . . . of each corporation, taking into account the stock ownership of each such person only to the extent such stock ownership is identical with respect to each such corporation. [Footnote 2] Page 455 U. S. 19 The interpretation of the statutory provision by Treas.Reg. § 1.1561(a)(3), 26 CFR § 1.1563-1(a)(3) (1981), is that the "term brother-sister controlled group' means two or more corporations if the same five or fewer persons . . . own . . . singly or in combination" the two prescribed percentages of voting power or total value. [Footnote 3] The question presented is whether the regulatory interpretation -- that the statutory definition is met by the ownership of the prescribed stock by five or fewer persons "singly or in combination" -- is a reasonable implementation of the statute, or whether Congress intended the statute to apply only where each person whose stock is taken into account owns stock in each corporation of the group." IRespondent Vogel Fertilizer Co. (Vogel Fertilizer), an Iowa corporation, sells farm fertilizer products. During the tax years in question -- 1973, 1974, and 1975 -- Vogel Fertilizer Page 455 U. S. 20 had only common stock issued and outstanding and Arthur Vogel (Vogel) owned 77.49 percent of that stock. Richard Crain (Crain), who is unrelated to Arthur Vogel, owned the remaining 22.51 percent. Vogel Popcorn Co. (Vogel Popcorn), another Iowa corporation, sells popcorn in both Page 455 U. S. 21 the wholesale and retail markets. For the tax years in question, Crain owned no stock in Vogel Popcorn. Vogel, however, held 87.5 percent of the voting power, and between 90.66 percent and 93.42 percent of the value of Vogel Popcorn's stock. [Footnote 4]Vogel Fertilizer did not claim a full surtax exemption on its tax returns for the years in question, [Footnote 5] believing that Treas.Reg. § 1.1561(a)(3) barred such a claim. But when the United States Tax Court, in 1976, held that Treas.Reg. § 1.1561(a)(3) was invalid because the statute did not permit the Commissioner to take a person's stock ownership into account for purposes of the 80-percent requirement unless that person owned stock in each corporation within the brother-sister controlled group, Fairfax Auto Parts of Northern Virginia, Inc. v. Commissioner, 65 T.C. 798 (1976), rev'd, 548 F.2d 501 (CA4 1977), Vogel Fertilizer filed timely clams for refunds, asserting that Vogel Fertilizer and Vogel Popcorn were not members of a controlled group, and that Vogel Fertilizer was therefore entitled to a full surtax exemption for each taxable year. The Internal Revenue Service disallowed the claims, and respondent brought this suit for a refund in the United States Court of Claims. The Court of Claims held that Vogel Fertilizer and Vogel Popcorn did not Page 455 U. S. 22 constitute a brother-sister controlled group within the meaning of § 1563(a)(2)(A); that Treas.Reg. § 1.1561(a)(3) is invalid to the extent that it takes into account, with respect to the 80-percent requirement, stock held by a shareholder who owns stock in only one corporation of the controlled group; and that respondent was, accordingly, entitled to a refund. 22 Ct.Cl. 15, 634 F.2d 497 (1980). We granted certiorari to resolve a conflict among the Circuits on this issue, 450 U.S. 994 (1981), [Footnote 6] and now affirm.IIVogel's ownership of more than 50 percent of both Vogel Fertilizer and Vogel Popcorn satisfies Part (B) of the statutory test -- the 50-percent identical ownership requirement. The controversy centers on Part (A) of the test -- the 80-percent requirement.Respondent argues that the statute must be construed as including a common ownership requirement -- Congress was attempting to identify interrelated corporations that are, in reality, subdivided portions of a larger entity. In the taxpayer's view, Congress thus did not intend that a person's stock ownership be taken into account for purposes of the 80-percent requirement unless that shareholder owned stock in all Page 455 U. S. 23 of the corporations within the controlled group. The same "5 or fewer" individuals cannot be said to control 80 percent of both Vogel Fertilizer and Vogel Popcorn, because Crain owns no stock in Vogel Popcorn, and therefore his 22.51 percent of Vogel Fertilizer cannot be added to Vogel's 77.49 percent of that corporation to satisfy § 1563(a)(2)(A). The Commissioner takes the position, however, reflected in his addition of the words "singly or in combination" in Treas.Reg. § 1.1563-1(a)(3) to the statutory language, that there is no common ownership requirement -- various subgroups of "5 or fewer persons" can own the requisite 80 percent of the different corporations within the controlled group. The Commissioner acknowledges that, under this interpretation, Part (A)'s 80-percent requirement in no respect measures the interrelationship between two corporations. The Commissioner's view is that only the 50-percent requirement measures this interrelationship. He contends the 80-percent requirement "continues to have independent significance" in that it "insures that all the members of the corporate group will be closely held," so that"the more than 50-percent shareholder control group can obtain additional control in those instances where a greater interest is needed without the necessity of dealing with a large number of other shareholders."Brief for United States 35. [Footnote 7] Page 455 U. S. 24AOur role is limited to determining the validity of Treas.Reg. § 1.1563-1(a)(3). Deference is ordinarily owing to the agency construction if we can conclude that the regulation "implement[s] the congressional mandate in some reasonable manner." United States v. Correll, 389 U. S. 299, 389 U. S. 307 (1967). But this general principle of deference, while fundamental, only sets "the framework for judicial analysis; it does not displace it." United States v. Cartwright, 411 U. S. 546, 411 U. S. 550 (1973).The framework for analysis is refined by consideration of the source of the authority to promulgate the regulation at issue. The Commissioner has promulgated Treas.Reg. § 1.1563-1(a)(3) interpreting this statute only under his general authority to "prescribe all needful rules and regulations." 26 U.S.C. § 7805(a). Accordingly,"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."Rowan Cos. v. United States, 452 U. S. 247, 452 U. S. 253 (1981). In addition, Treas.Reg. § 1.1563-1(a)(3) purports to do no more than add a clarifying gloss on a term -- "brother-sister controlled group" -- that has already been defined with considerable specificity by Congress. The Commissioner's authority is consequently more circumscribed than would be the case if Congress had used a term "so general . . . as to render an interpretive regulation appropriate.'" National Muffler Dealers Assn., Page 455 U. S. 25 Inc. v. United States, 440 U. S. 472, 440 U. S. 476 (1979), quoting Helvering v. R. J. Reynolds Co., 306 U. S. 110, 306 U. S. 114 (1939). See also Rowan Cos. v. United States, supra.BWe consider first whether the Regulation harmonizes with the statutory language. National Muffler Dealers Assn., Inc. v. United States, supra, at 440 U. S. 477. That language, set forth supra at 455 U. S. 18, and n. 2, while not completely unambiguous, is in closer harmony with the taxpayer's interpretation than with the Commissioner's Regulation. The term that the statute defines -- "brother-sister controlled group" -- connotes a close horizontal relationship between two or more corporations, suggesting that the same indivisible group of five or fewer persons must represent 80 percent of the ownership of each corporation.This interpretation is strengthened by the structure of the statute. Section 1563(a)(2) defines the controlling group of shareholders ("5 or fewer"), and then sets forth the two ownership requirements (80 percent and 50 percent). This structure suggests that precisely the same shareholders must satisfy both the 80-percent and 50-percent requirements. As the Tax Court stated it, "5 or fewer persons" is the "conjunctive subject" of both requirements. Fairfax Auto Parts of Northern Virginia, Inc. v. Commissioner, 65 T.C. at 803. Since under Part (B)'s 50-percent requirement, stock ownership is taken into account only to the extent it is "identical," that part of the statutory test clearly includes a common ownership requirement. If, as the statutory structure suggests, the shareholders whose holdings are considered for purposes of Part (A) must be precisely the same shareholders as those whose holdings are considered for purposes of Part (B), the former also requires common ownership. [Footnote 8] Page 455 U. S. 26Of course, a Treasury Regulation is not invalid simply because the statutory language will support a contrary interpretation. But the mere fact that there are no words in Part (A) explicitly requiring that each shareholder own stock in each corporation does not mean that the Regulation's interpretation, "singly or in combination," must be accepted as reasonable. This Court has firmly rejected the suggestion that a regulation is to be sustained simply because it is not "technically inconsistent" with the statutory language when that regulation is fundamentally at odds with the manifest congressional design. United States v. Cartwright, supra, at 411 U. S. 557. The challenged Regulation is not a reasonable statutory interpretation unless it harmonizes with the statute's "origin and purpose." National Muffler Dealers Assn., Inc. v. United States, supra, at 440 U. S. 477.CThe legislative history of § 1563(a)(2) resolves any ambiguity in the statutory language and makes it plain that Treas.Reg. § 1.1563-1(a)(3) is not a reasonable statutory interpretation. Through the controlled group test, Congress intended to curb the abuse of multiple incorporation -- large organizations subdividing into smaller corporations and receiving unintended Page 455 U. S. 27 tax benefits from the multiple use of surtax exemptions, accumulated earnings credits, and various other tax provisions designed to aid small businesses. S.Rep. No. 91-552, p. 134 (1969). The House Ways and Means Committee Report noted:"[L]arge organizations have been able to obtain substantial benefits . . . by dividing the organization's income among a number of related corporations. Your committee does not believe that large organizations which operate through multiple corporations should be allowed to receive the substantial and unintended tax benefits resulting from the multiple use of the surtax exemption and the other provisions of present law."H.R.Rep. No. 91-413, pt. 1, p. 98 (1969). The intended targets of § 1563(a)(2) were groups of interrelated corporations -- corporations characterized by common control and ownership. Although the 50-percent requirement measures, to a lesser degree, the overlap between two corporations, the history of the enactment of § 1563(a)(2) illustrates that Congress intended that the 80-percent requirement be the primary requirement for defining the interrelationship between two or more corporations.Until 1964, the method prescribed by the Code to curb the abuse of multiple incorporation was subjective: multiple exemptions or benefits were allowed or disallowed depending on the reasons for the taxpayer's actions. [Footnote 9] The Revenue Act of 1964 changed this approach, adding §§ 1561-1563 to the Code. Pub.L. 88-272, § 235(a), 78 Stat. 116-125. These sections prescribed the application of mechanical, objective Page 455 U. S. 28 tests for determining whether two corporations were a "controlled group," and thereby restricted to one surtax exemption. The original, 1964, definition of a "brother-sister controlled group" was:"Two or more corporations if stock possessing at least 80 percent of the total combined voting power of all classes of stock entitled to vote or at least 80 percent of the total value of shares of all classes of stock of each of the corporations is owned . . . by one person who is an individual, estate, or trust."26 U.S.C. § 1563(a)(2) (1964 ed.). Because corporations were not part of a controlled group unless the same person owned 80 percent of all corporations within the group, the 1964 provision clearly included a common ownership requirement.In 1969, Congress adopted the present two-part percentage test codified in § 1563(a)(2). Pub.L. 91-172, § 401(c), 83 Stat. 602. This change was proposed by the Treasury Department as part of an extensive package of tax reform proposals. See Hearings Before the House Committee on Ways and Means on the Subject of Tax Reform, 91st Cong., 1st Sess., pt. 14, pp. 5050-5478 (1969) (hereinafter Hearings). The Treasury Department proposed, inter alia, that the definition of a brother-sister controlled group"be broadened to include groups of corporations owned and controlled by five or fewer persons, rather than only those owned and controlled by one person,"as was the case under then existing law. Id. at 5166. In setting forth the "Technical Explanation" Page 455 U. S. 29 for this new definition of brother-sister controlled groups, the Treasury Department was most explicit that the 80-percent requirement, like the 50-percent requirement, included common ownership:"[T]he same five or fewer persons [must] own at least 80 percent of the voting stock or value of shares of each corporation and . . . these five or fewer individuals"must satisfy the 50-percent requirement in Part (B). Id. at 5168 (emphasis added except for "five").The Treasury Department's "General Explanation" of the amendment to § 1563(a)(2) defined a brother-sister controlled group as one "in which five or fewer persons own, to a large extent in identical proportions, at least 80 percent of the stock of each of the corporations." Hearings, at 5394 (footnote omitted). The General Explanation then set forth the respective roles of the expanded 80-percent requirement and the new 50-percent requirement:"This provision expands present law by considering the combined stock ownership of five individuals, rather than one individual, in applying the 80-percent test. . . .""However, in order to insure that this expanded definition of brother-sister controlled group applies only to those cases where the five or fewer individuals hold their 80 percent in a way which allows them to operate the corporations as one economic entity, the proposal would add an additional rule that the ownership of the five or fewer individuals must constitute more than 50 percent of the stock of each corporation considering, in this test of ownership, stock of a particular person only to the extent that it is owned identically with respect to each corporation."Ibid.The General Explanation made it clear that, under the 1969 amendment to § 1563(a)(2), the 80-percent requirement would remain the primary basis for determining whether two or more corporations represent the same financial interests. Part (A) of the 1969 test was simply an expansion of the 1964 test, which considered the two or more corporations to be a Page 455 U. S. 30 brother-sister controlled group only when one person owned 80 percent of all of the corporations. This "expansion" was necessary to "close the present opportunity for easy avoidance" of the 80-percent test. Hearings at 5396. Because five persons now played the role previously played by one, this expanded version of the test required a new safeguard -- the 50-percent requirement -- to"insure that the new expanded definition is limited to cases where the brother-sister corporations are, in fact, controlled by the group of stockholders as one economic enterprise."Ibid. (emphasis added). [Footnote 10]The "singly or in combination" provision of Treas.Reg. § 1.1563 1(a)(3) is clearly incompatible with the explanation offered by the Treasury Department when it proposed the statute. In addition to the explicit statement that the members of the controlling group must own stock in "each" corporation, the Treasury Department presented a test in which the 80-percent requirement remained the primary indicia of interrelationship. But under the challenged Regulation, the 80-percent requirement measures only whether or not the brother-sister corporations are closely held. The fact that a corporation is closely held, absent common ownership, is irrelevant to the congressional purpose of identifying interrelationship: "It is not the smallness of the number of persons in each company that triggers § 1563; it is the sameness of that small number." T. L. Hunt, Inc. v. Commissioner, 562 F.2d 532, 537 (CA8 1977) (Webster, J. dissenting). [Footnote 11] Page 455 U. S. 31The Treasury Department's explanations of the proposed statute are not, as the dissent in the Court of Claims suggested, a mere "admission against interest" by the Commissioner. 225 Ct.Cl. at 44, 634 F.2d at 514. The expanded definition of "brother-sister controlled group" was proposed by the Treasury Department, and adopted in the same form in which it was presented. Of course, it is Congress' understanding of what it was enacting that ultimately controls. But we necessarily attach "great weight" to agency representations to Congress when the administrators "participated in drafting and directly made known their views to Congress in committee hearings." Zuber v. Allen, 396 U. S. 168, 396 U. S. 192 (1969). The subsequent legislative history of § 1563(a)(2) confirms that Congress adopted not only the proposal of the Treasury Department, but also the Department's explanation Page 455 U. S. 32 and interpretation which are wholly incompatible with the "singly or in combination" interpretation of the Regulation. The Ways and Means Committee Report stated:"This bill expands the definition [of a brother-sister controlled group] to include two or more corporations which are owned 80 percent or more (by voting power or value) by five or fewer persons (individuals, estates, or trusts) provided that these five or fewer persons own more than 50 percent of each corporation when the stock of each person is considered only to the extent it is owned identically with respect to each corporation."H.R.Rep. No. 91-413, pt. 1, p. 99 (1969). The House Committee Report thus reflects the Treasury Department's explanations -- the 80-percent requirement is an expanded version of the 1964 statute and measures overlapping interests, while the 50-percent requirement is an additional proviso necessary in light of the expanded number of shareholders whose overlapping interests were to be considered. [Footnote 12]DThe Commissioner's further reasons for sustaining his interpretation are unpersuasive.The Commissioner relies on the fact that, in expanding the coverage of § 1563(a)(2), Congress expressly adopted part of the language used in § 1551(b)(2) of the Code to describe a transfer from one corporation to another "controlled" by the same "five or fewer" individuals. The Commissioner contends that Congress thereby approved the interpretation the Commissioner had placed on § 1551(b)(2). Even if we could assume that Congress was aware of Treasury Regulations interpreting Page 455 U. S. 33 § 1551, promulgated only two years before § 1563 was enacted, see 32 Fed.Reg. 3214-3216 (1967), the promulgated regulations do not support the Commissioner's present interpretation of the statutory language in § 1563(a)(2). The Regulations defining control under § 1551 contain no language similar to the words "singly or in combination" found in Treas.Reg. § 1.1563-1(a)(3), and they contain no suggestion that the Treasury Department had interpreted § 1551(b)(2) as not having a common ownership requirement. See Treas.Reg. § 1.1551-1(e), 26 CFR § 1.1551-1(e) (1981). [Footnote 13]Also unpersuasive is the Commissioner's reliance on the fact that § 1563(a)(2) is referred to in § 1015 of the Employee Retirement Income Security Act of 1974, 26 U.S.C. § 414. [Footnote 14] Page 455 U. S. 34 From this, the Commissioner infers congressional approval of all the Regulations promulgated under § 1563(a)(2), including the Regulation at issue in this case. But it is the intent of the Congress that amended § 1563(a), not the views of the subsequent Congress that enacted § 414, that are controlling. See Teamsters v. United States, 431 U. S. 324, 431 U. S. 354, n. 39 (1977). In any event, this passing reference in 26 U.S.C. § 414(b), enacted only two years after Treas.Reg. § 1.1563-1(a)(3) was promulgated, 37 Fed.Reg. 8068-8070 (1972), hardly constitutes legislative approval of a longstanding administrative interpretation, from which we could infer any congressional acceptance. Cf. United States v. Correll, 389 U.S. at 389 U. S. 305-306.Finally, the Commissioner seeks to uphold the Regulation on the ground that a common ownership requirement leads to the assertedly nonsensical result that ownership of only one share could be determinative. For example, if Crain owned but one share of Vogel Popcorn, then the 80-percent requirement would be met and the taxpayer corporation would be part of a controlled group even under the taxpayer's interpretation of the statute. This argument is without merit for several reasons. First, Congress purposefully substituted the mechanical formula of § 1563(a)(2) for the subjective, case-by-case analysis that had previously prevailed. Inherent in such an objective test is a sharp dividing line that is crossed by incremental changes in ownership. Moreover, it is obvious that a shareholder would not buy a small amount of stock in order to create a controlled group, since it is to the taxpayer's advantage not to be part of such a group. Finally, a person's "mere" ownership of one share of stock plays an important role in the operation of the test. It insures that each of the "5 or fewer" shareholders representing the bulk of the financial interest of the corporations actually knows of the other corporations within the putative brother-sister controlled group. Under this construction of the statute, controlled group membership cannot Page 455 U. S. 35 catch such a shareholder by surprise, as it could under the Commissioner's construction.Affirmed

U.S. Supreme CourtUnited States v. Vogel Fertilizer Co., 455 U.S. 16 (1982)United States v. Vogel Fertilizer Co.No. 80-1251Argued November 3, 1981Decided January 13, 1982455 U.S. 16SyllabusSection 1561(a) of the Internal Revenue Code of 1954 limits a "controlled group of corporations" to a single surtax exemption. Section 1563(a)(2) provides that a "controlled group of corporations" includes a "brother-sister controlled group," defined as"[t]wo or more corporations if 5 or fewer persons . . . own . . . stock possessing (A) at least 80 percent of the total combined voting power . . . or at least 80 percent of the total value . . . of each corporation, and (B) more than 50 percent of the total combined voting power . . . or more than 50 percent of the total value . . . of each corporation, taking into account the stock ownership of each such person only to the extent such stock ownership is identical with respect to each such corporation."An implementing Treasury Regulation interprets the statutory term "brother-sister controlled group" to mean two or more corporations if the same five or fewer persons own "singly or in combination" the two prescribed percentages of voting power or total value. One shareholder, Vogel, owned 77.49 percent of the outstanding stock of respondent Vogel Fertilizer Co. Another shareholder, Crain, owned the remaining 22.51 percent. Vogel also owned 87.5 percent of the voting power in Vogel Popcorn Co. and 90.66-93.42 percent of the value of its stock. Crain owned no stock in Vogel Popcorn. Respondent claimed refunds for taxes paid in certain tax years for which it did not claim a full surtax exemption, asserting that respondent and Vogel Popcorn were not members of a controlled group and respondent was therefore entitled to a full surtax exemption for each taxable year. When the Internal Revenue Service disallowed the refund claims, respondent filed suit for a refund in the Court of Claims, which held that respondent was entitled to a refund.Held: The implementing Treasury Regulation is invalid as not being a reasonable interpretation of the statute, which, as indicated by its language, structure, and legislative history, was intended to apply only where each person whose stock is taken into account for purposes of the 80-percent requirement owns stock in each corporation of the group. Pp. 455 U. S. 22-35.(a) Since the Regulation was promulgated only under the Commissioner of Internal Revenue's general authority to prescribe all needful rules and regulations, it is owed less deference than a regulation issued under a specific grant of authority to define a statutory term. Moreover, the Regulation purports to do no more than add a clarifying gloss on a term already specifically defined by Congress. Pp. 455 U. S. 24-25. Page 455 U. S. 17(b) The statutory language is in closer harmony with respondent's interpretation than with the Regulation in question. The term the statute defines -- "brother-sister controlled group" -- connotes a close horizontal relationship between two or more corporations, suggesting that the same indivisible group of five or fewer persons must represent 80 percent of the ownership of each corporation. This interpretation is strengthened by the structure of the statute, which suggests that precisely the same shareholders must satisfy both the 80-percent and 50-percent requirements. Since, under Part (B)'s 50-percent requirement, stock ownership is taken into account only to the extent it is "identical," that part of the statutory test clearly includes a common ownership requirement. And the mere fact that there are no words in Part (A) explicitly requiring each shareholder to own stock in each corporation does not mean that the Regulation's interpretation, "singly or in combination," must be accepted as reasonable. Pp. 455 U. S. 226.(c) The statute's legislative history makes it plain that the Regulation is not a reasonable statutory interpretation, where it appears that the intended targets of § 1563(a)(2) were groups of interrelated corporation -- corporations characterized by common control and ownership, and that Congress intended the 80-percent requirement, as an expanded version of the former statute, to be the primary requirement for defining the interrelationship between two or more corporations, the 50-percent requirement being an additional proviso necessary in light of the expanded number of shareholders whose overlapping interests were to be considered. The "singly or in combination" provision of the Regulation is clearly incompatible with this intent. Pp. 455 U. S. 26-32.225 Ct.Cl. 15, 634 F.2d 497, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and MARSHALL, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 455 U. S. 35. Page 455 U. S. 18

1981_80-1952

JUSTICE REHNQUIST delivered the opinion of the Court.Respondents represent a class of Medicaid patients challenging decisions by the nursing homes in which they reside to discharge or transfer patients without notice or an opportunity for a hearing. The question is whether the State may be held responsible for those decisions so as to subject them to the strictures of the Fourteenth Amendment.ICongress established the Medicaid program in 1965 as Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (1976 ed. and Supp. IV), to provide federal financial assistance Page 457 U. S. 994 to States that choose to reimburse certain medical costs incurred by the poor. As a participating State, New York provides Medicaid assistance to eligible persons who receive care in private nursing homes, which are designated as either "skilled nursing facilities" (SNF's) or "health related facilities" (HRF's). [Footnote 1] The latter provide less extensive, and generally less expensive, medical care than the former. [Footnote 2] Nursing homes chosen by Medicaid patients are directly reimbursed by the State for the reasonable cost of health care services, N.Y.Soc.Serv.Law § 367-a.1 (McKinney Supp.1981).An individual must meet two conditions to obtain Medicaid assistance. He must satisfy eligibility standards defined in terms of income or resources, and he must seek medically necessary services. See 42 U.S.C. § 1396. To assure that the latter condition is satisfied, [Footnote 3] federal regulations require each nursing home to establish a utilization review committee (URC) of physicians whose functions include periodically assessing Page 457 U. S. 995 whether each patient is receiving the appropriate level of care, and thus whether the patient's continued stay in the facility is justified. [Footnote 4] 42 CFR §§ 456.305, 456.406 (1981). If the URC determines that the patient should be discharged or transferred to a different level of care, either more or less intensive, it must notify the state agency responsible for administering Medicaid assistance. [Footnote 5] 42 CFR §§ 456.337(c), 456.437(d) (1981); 10 NYCRR §§ 416.9(f)(2), (3), 421.13(f)(2), (3) (1980).At the time their complaint was filed, respondents Yaretsky and Cuevas were patients in the American Nursing Home, an SNF located in New York City. Both were recipients of assistance under the Medicaid program. In December, 1975, the nursing home's URC decided that respondents did not need the care they were receiving, and should be transferred to a lower level of care in an HRF. New York City officials, who were then responsible for administering the Medicaid program in the city, were notified of this decision, and prepared to reduce or terminate payments to the nursing home for respondents' care. Following administrative hearings, state social service officials affirmed the decision to discontinue benefits unless respondents accepted a transfer to an HRF providing a reduced level of care.Respondents then commenced this suit, acting individually and on behalf of a class of Medicaid-eligible residents of New Page 457 U. S. 996 York nursing homes. [Footnote 6] Named as defendants were the Commissioners of the New York Department of Social Services and the Department of Health. Respondents alleged in part that the defendants had not afforded them adequate notice either of URC decisions and the reasons supporting them or of their right to an administrative hearing to challenge those decisions. [Footnote 7] Respondents maintained that these actions violated their rights under state and federal law and under the Due Process Clause of the Fourteenth Amendment. They sought injunctive relief and damages. [Footnote 8]In January, 1978, the District Court certified a class [Footnote 9] and issued a preliminary injunction, restraining the defendants Page 457 U. S. 997 from reducing or terminating Medicaid benefits without timely written notice to the patients, provided by state or local officials, of the reasons for the URC decision, the defendants' proposed action, and the patients' right to an evidentiary hearing and continued benefits pending administrative resolution of the claim. App. 100-101, 112. [Footnote 10] The court's accompanying opinion relied primarily on existing federal and state regulations. Id. at 112-115.In March, 1979, the District Court issued a pretrial order that identified a new claim raised by respondents that a panoply of procedural safeguards should apply to URC decisions transferring a patient to higher, i.e., more intensive, level of medical care, as well as to decisions recommending transfers to a lower level of care. In addition, respondents claimed that such safeguards were required prior to transfers of any kind initiated by the nursing homes themselves, or by the patients' attending physicians. Id. at 157, � II(J); 166-167, � II(J). Respondents asserted that all of these transfers deprived patients of interests protected by the Fourteenth Amendment, and were the product of "state action." Id. at 167, � II(J). [Footnote 11]In October, 1979, the District Court approved a consent judgment incorporating the relief previously awarded by the preliminary injunction and establishing additional substantive and procedural rights applicable to URC-initiated transfers to lower levels of care. Id. at 227-239. The consent judgment left several issues of law to be decided by the District Court. The most important, for our purposes, was"whether there is state action and a constitutional right to Page 457 U. S. 998 a pre-transfer evidentiary hearing in a patient transfer to a higher level of care and/or a patient transfer initiated by the facility or its agents."Id. at 234-235, VIII(A)(1). Ultimately, the District Court answered that question in respondents' favor, although without elaborating its reasons. Id. at 240. The court permanently enjoined petitioners, as well as all SNF's and HRF's in the State, from permitting or ordering the discharge of class members, or their transfer to a different level of care, without providing advance written notice and an evidentiary hearing on "the validity and appropriateness of the proposed action." Id. at 242-243.The Court of Appeals for the Second Circuit affirmed that portion of the District Court's judgment we have described above. 629 F.2d 817 (1980). [Footnote 12] The court held that URC-initiated transfers from a lower level of care to a higher one, and all discharges and transfers initiated by the nursing homes or attending physicians, "involve state action affecting constitutionally protected property and liberty interests." Id. at 820. The court premised its identification of state action on the fact that state authorities "responded" to the challenged transfers by adjusting the patients' Medicaid benefits. Ibid. Citing our opinion in Jackson v. Metropolitan Edison Co., 419 U. S. 345, 419 U. S. 351 (1974), the court viewed this response as establishing a sufficiently close "nexus" between the State and either the nursing homes or the URC's to justify treating their actions as those of the State itself.We granted certiorari to consider the Court of Appeals' conclusions about the nature of state action. 454 U.S. 815 (1981). We now reverse its judgment. Page 457 U. S. 999IIWe first address a question raised by petitioners regarding our jurisdiction under Article III. They contend that respondents, who were threatened with URC-initiated transfers to lower levels of care, are without standing to object either to URC-initiated transfers to higher levels of care or to transfers of any kind initiated by nursing homes or attending physicians. According to petitioners, respondents obtained complete relief in the consent judgment approved by the District Court in October, 1979, which afforded substantive and procedural rights to patients who are the subject of URC-initiated transfers to lower level of care. Since they have not been threatened with transfers of any other kind, they have no standing to object, and the District Court consequently was without Art. III jurisdiction to enter its judgment.It is axiomatic that the judicial power conferred by Art. III may not be exercised unless the plaintiff shows "that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 441 U. S. 99 (1979). It is not enough that the conduct of which the plaintiff complains will injure someone. The complaining party must also show that he is within the class of persons who will be concretely affected. Nor does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject. See Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 407 U. S. 166-167 (1972).Respondents appear to recognize these principles, but contend that, although the October, 1979, consent judgment halted the implementation of adverse URC decisions recommending discharge or transfer to lower levels of care, the URC determinations themselves were left undisturbed. These determinations reflected the judgment of physicians, chosen by the Page 457 U. S. 1000 nursing homes, that respondents' continued stay in their facilities was not medically necessary. Consequently, respondents maintain that they are subject to the serious threat that the nursing home administrators will reach similar conclusions, and will themselves initiate patient discharges or transfers without adequate notice or hearings. Petitioners belittle this suggestion, noting that the consent judgment permanently enjoined all New York nursing homes, as well as petitioners, from implementing URC transfers to lower levels of care; this injunction bars the nursing homes from adopting the URC decisions as their own. Petitioners concede, however, that the consent judgment permits the nursing homes and respondents' attending physicians to decide independently to initiate transfers.We conclude that the threat of facility-initiated discharges or transfers to lower levels of care is sufficiently substantial that respondents have standing to challenge their procedural adequacy. In reaching this conclusion, we are mindful of"the primary conception that federal judicial power is to be exercised . . . only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action."Poe v. Ullman, 367 U. S. 497, 367 U. S. 504 (1961). Of course, "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief." Pennsylvania v. West Virginia, 262 U. S. 553, 262 U. S. 593 (1923), quoted in Babbitt v. Farm Workers, 442 U. S. 289, 442 U. S. 298 (1979). "[T]he question becomes whether any perceived threat to respondents is sufficiently real and immediate to show an existing controversy. . . ." O'Shea v. Littleton, 414 U. S. 488, 414 U. S. 496 (1974). Even accepting petitioners' characterization of the scope of the permanent injunction embodied in the consent judgment, the nursing homes in which respondents reside remain free to determine independently that respondents' continued stay at current levels of care is not medically necessary. The possibility that they will do so is not "imaginary or speculative." Younger v. Harris, 401 Page 457 U. S. 1001 U.S. 37, 401 U. S. 42 (1971). In light of similar determinations already made by the committee of physicians chosen by the facilities to make such assessments, the threat is quite realistic. See O'Shea v. Littleton, supra, at 414 U. S. 496 ("past wrongs are evidence bearing on whether there is real and immediate threat of repeated injury").We cannot conclude, however, that the threat of transfers to higher levels of care, whether initiated by the URC's, the nursing homes, or attending physicians, is "of sufficient immediacy and reality," Golden v. Zwickler, 394 U. S. 103, 394 U. S. 108 (1969), that respondents have standing to seek an adjudication of the procedures attending such transfers. Nothing in the record available to this Court suggests that any of the individual respondents have been either transferred to more intensive care or threatened with such transfers. It is not inconceivable that respondents will one day confront this eventuality, but assessing the possibility now would "tak[e] us into the area of speculation and conjecture." O'Shea v. Littleton, supra, at 414 U. S. 497. [Footnote 13]Moreover, the conditions under which such transfers occur are sufficiently different from those which respondents do have standing to challenge that any judicial assessment of their procedural adequacy would be wholly gratuitous and advisory. Transfers to higher levels of care are recommended when the patient's medical needs cannot be satisfied by the facility in which he or she currently resides. Although Page 457 U. S. 1002 respondents contend that all transfers threaten elderly patients with physical or psychological trauma, one may infer that refusal to accept a transfer to a higher level of care could itself be a decision with potentially traumatic consequences. The same cannot be said of discharges or transfers to less intensive care. In addition, transfers to more intensive care typically result in an increase in Medicaid benefits to match the increased cost of medically necessary care. Respondents' constitutional attack on discharges or transfers to a lower level of care presupposes a deprivation of protected property interests. Finally, since July, 1978, petitioners have adhered to a policy permitting Medicaid patients to refuse URC-recommended transfers to higher levels of care without jeopardizing their Medicaid benefits. App. 180, � 56. No similar policy was in force with respect to other transfers until the District Court mandated its adoption.We conclude, therefore, that, although respondents have standing to challenge facility-initiated discharges and transfers to lower levels of care, the District Court exceeded its authority in adjudicating the procedures governing transfers to higher levels of care. We turn now to the "state action" question presented by petitioners.IIIThe Fourteenth Amendment of the Constitution provides in part that "[n]o State shall . . . deprive any person of life, liberty, or property without due process of law." Since this Court's decision in the Civil Rights Cases, 109 U. S. 3 (1883),"the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States."Shelley v. Kraemer, 334 U. S. 1, 334 U. S. 13 (1948). "That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Ibid. See Jackson v. Metropolitan Edison Co., 419 Page 457 U. S. 1003 U.S. 345 (1974); Adickes v. S. H. Kress & Co., 398 U. S. 144 (1970).Faithful adherence to the "state action" requirement of the Fourteenth Amendment requires careful attention to the gravamen of the plaintiff's complaint. In this case, respondents objected to the involuntary discharge or transfer of Medicaid patients by their nursing homes without certain procedural safeguards. [Footnote 14] They have named as defendants state officials responsible for administering the Medicaid program in New York. These officials are also responsible for regulating nursing homes in the State, including those in which respondents were receiving care. But respondents are not challenging particular state regulations or procedures, and their arguments concede that the decision to discharge or transfer a patient originates not with state officials, but with nursing homes that are privately owned and operated. Their lawsuit, therefore, seeks to hold state officials liable for the actions of private parties, and the injunctive relief they have obtained requires the State to adopt regulations that will prohibit the private conduct of which they complain.AThis case is obviously different from those cases in which the defendant is a private party and the question is whether his conduct has sufficiently received the imprimatur of the State so as to make it "state" action for purposes of the Fourteenth Amendment. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U. S. 149 (1978); Jackson v. Metropolitan Edison Co., supra; Moose Lodge No. 107 v. Irvis, 407 U. S. 163 (1972); Page 457 U. S. 1004 Adickes v. S. H. Kress & Co., supra. It also differs from other "state action" cases in which the challenged conduct consists of enforcement of state laws or regulations by state officials who are themselves parties in the lawsuit; in such cases, the question typically is whether the private motives which triggered the enforcement of those laws can fairly be attributed to the State. See, e.g., Peterson v. City of Greenville, 373 U. S. 244 (1963). But both these types of cases shed light upon the analysis necessary to resolve the present case.First, although it is apparent that nursing homes in New York are extensively regulated,"[t]he mere fact that a business is subject to state regulation does not, by itself, convert its action into that of the State for purposes of the Fourteenth Amendment."Jackson v. Metropolitan Edison Co., 419 U.S. at 419 U. S. 350. The complaining party must also show that"there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself."Id. at 419 U. S. 351. The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains. The importance of this assurance is evident when, as in this case, the complaining party seeks to hold the State liable for the actions of private parties.Second, although the factual setting of each case will be significant, our precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. Flagg Bros., Inc. v. Brooks, supra, at 436 U. S. 166; Jackson v. Metropolitan Edison Co., supra, at 419 U. S. 357; Moose Lodge No. 107 v. Irvis, supra, at 407 U. S. 173; Adickes v. S. H. Kress & Co., supra, at 398 U. S. 170. Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those Page 457 U. S. 1005 initiatives under the terms of the Fourteenth Amendment. See Flagg Bros., supra, at 436 U. S. 164-165; Jackson v. Metropolitan Edison Co., supra, at 419 U. S. 357.Third, the required nexus may be present if the private entity has exercised powers that are "traditionally the exclusive prerogative of the State." Jackson v. Metropolitan Edison Co., supra, at 419 U. S. 353; see Flagg Bros., Inc. v. Brooks, supra, at 436 U. S. 157-161.BAnalyzed in the light of these principles, the Court of Appeals' finding of state action cannot stand. The court reasoned that state action was present in the discharge or transfer decisions implemented by the nursing homes because the State responded to those decisions by adjusting the patient's Medicaid benefits. Respondents, however, do not challenge the adjustment of benefits, but the discharge or transfer of patients to lower levels of care without adequate notice or hearings. That the State responds to such actions by adjusting benefits does not render it responsible for those actions. The decisions about which respondents complain are made by physicians and nursing home administrators, all of whom are concededly private parties. There is no suggestion that those decisions were influenced in any degree by the State's obligation to adjust benefits in conformity with changes in the cost of medically necessary care.Respondents do not rest on the Court of Appeals' rationale, however. They argue that the State "affirmatively commands" the summary discharge or transfer of Medicaid patients who are thought to be inappropriately placed in their nursing facilities. Were this characterization accurate, we would have a different question before us. However, our review of the statutes and regulations identified by respondents does not support respondents' characterization of them.As our earlier summary of the Medicaid program explained, a patient must meet two essential conditions in order to obtain financial assistance. He must satisfy eligibility criteria Page 457 U. S. 1006 defined in terms of income and resources, and he must seek medically necessary services. 42 U.S.C. § 1396. To assure that nursing home services are medically necessary, federal law requires that a physician so certify at the time the Medicaid patient is admitted, and periodically thereafter. 42 U.S.C. § 1396b(g)(1) (1976 ed. and Supp. IV). New York requires that the physician complete a "long-term care placement form" devised by the Department of Health, called the DMS-1. 10 NYCRR §§ 415.1(a), 420.1(b) (1980). A completed form provides, inter alia, a numerical score corresponding to the physician's assessment of the patient's mental and physical health. As petitioners note, however, the physicians, and not the forms, make the decision about whether the patient's care is medically necessary. [Footnote 15] A physician can authorize a patient's admission to a nursing facility despite a "low" score on the form. See 10 NYCRR §§ 415.1(a)(2), 420.1(b)(2) (1978). [Footnote 16] We cannot say that the Page 457 U. S. 1007 State, by requiring completion of a form, is responsible for the physician's decision.In any case, respondents' complaint is about nursing home decisions to discharge or transfer, not to admit, Medicaid patients. But we are not satisfied that the State is responsible for those decisions either. [Footnote 17] The regulations cited by respondents require SNF's and HRF's"to make all efforts possible to transfer patients to the appropriate level of care or Page 457 U. S. 1008 home as indicated by the patient's medical condition or needs,"10 NYCRR §§ 416.9(d)(1), 421.13(d)(1) (1980). [Footnote 18] The nursing homes are required to complete patient care assessment forms designed by the State and "provide the receiving facility or provider with a current copy of same at the time of discharge to an alternate level of care facility or home." 10 NYCRR §§ 416.9(d)(4), 421.13(d)(4) (1980).These regulations do not require the nursing homes to rely on the forms in making discharge or transfer decisions, nor do they demonstrate that the State is responsible for the decision to discharge or transfer particular patients. Those decisions ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State. [Footnote 19] This case, therefore, is not unlike Page 457 U. S. 1009 Polk County v. Dodson, 454 U. S. 312 (1981), in which the question was whether a public defender acts "under color of" state law within the meaning of 42 U.S.C. § 1983 when representing an indigent defendant in a state criminal proceeding. [Footnote 20] Although the public defender was employed by the State and appointed by the State to represent the respondent, we concluded that "[t]his assignment entailed functions and obligations in no way dependent on state authority." Id. at 454 U. S. 318. The decisions made by the public defender in the course of representing his client were framed in accordance with professional canons of ethics, rather than dictated by any rule of conduct imposed by the State. The same is true of nursing home decisions to discharge or transfer particular patients because the care they are receiving is medically inappropriate. [Footnote 21]Respondents next point to regulations which, they say, impose a range of penalties on nursing homes that fail to discharge or transfer patients whose continued stay is inappropriate. One regulation excludes from participation in the Page 457 U. S. 1010 Medicaid program health care providers who "[f]urnished items or services that are substantially in excess of the beneficiary's needs." 42 CFR § 420.101(a)(2) (1981). The State is also authorized to fine health care providers who violate applicable regulations. 10 NYCRR § 414.18 (1978). As we have previously concluded, however, those regulations themselves do not dictate the decision to discharge or transfer in a particular case. Consequently, penalties imposed for violating the regulations add nothing to respondents' claim of state action.As an alternative position, respondents argue that, even if the State does not command the transfers at issue, it reviews and either approves or rejects them on the merits. The regulations cited by respondents will not bear this construction. Although the State requires the nursing homes to complete patient care assessment forms and file them with state Medicaid officials, 10 NYCRR §§ 415.1(a), 420.1(b) (1978), and although federal law requires that state officials review these assessments, 42 CFR §§ 456.271, 456.372 (1981), nothing in the regulations authorizes the officials to approve or disapprove decisions either to retain or discharge particular patients, and petitioners specifically disclaim any such responsibility. Instead, the State is obliged to approve or disapprove continued payment of Medicaid benefits after a change in the patient's need for services. See 42 CFR § 435.916 (1981). Adjustments in benefit levels in response to a decision to discharge or transfer a patient does not constitute approval or enforcement of that decision. As we have already concluded, this degree of involvement is too slim a basis on which to predicate a finding of state action in the decision itself.Finally, respondents advance the rather vague generalization that such a relationship exists between the State and the nursing homes it regulates that the State may be considered a joint participant in the homes' discharge and transfer of Medicaid patients. For this proposition, they rely upon Page 457 U. S. 1011 Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961). Respondents argue that state subsidization of the operating and capital costs of the facilities, payment of the medical expenses of more than 90% of the patients in the facilities, and the licensing of the facilities by the State, taken together, convert the action of the homes into "state" action. But, accepting all of these assertions as true, we are nonetheless unable to agree that the State is responsible for the decisions challenged by respondents. As we have previously held, privately owned enterprises providing services that the State would not necessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton. Jackson v. Metropolitan Edison Co., 419 U.S. at 419 U. S. 357-358. That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.We are also unable to conclude that the nursing homes perform a function that has been "traditionally the exclusive prerogative of the State." Jackson v. Metropolitan Edison Co., supra, at 419 U. S. 353. Respondents' argument in this regard is premised on their assertion that both the Medicaid statute and the New York Constitution make the State responsible for providing every Medicaid patient with nursing home services. The state constitutional provisions cited by respondents, however, do no more than authorize the legislature to provide funds for the care of the needy. See N.Y. Const., Art. XVII, §§ 1, 3. They do not mandate the provision of any particular care, much less long-term nursing care. Similarly, the Medicaid statute requires that the States provide funding for skilled nursing services as a condition to the receipt of federal moneys. 42 U.S.C. §§ 1396a(a)(13)(B), 1396d(a)(4)(A) (1976 ed. and Supp. IV). It does not require that the States provide the services themselves. Even if respondents' characterization of the State's duties were correct, Page 457 U. S. 1012 however, it would not follow that decisions made in the day-to-day administration of a nursing home are the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public. Indeed, respondents make no such claim, nor could they.IVWe conclude that respondents have failed to establish "state action" in the nursing homes' decisions to discharge or transfer Medicaid patients to lower levels of care. [Footnote 22] Consequently, they have failed to prove that petitioners have violated rights secured by the Fourteenth Amendment. The contrary judgment of the Court of Appeals is accordinglyReversed

U.S. Supreme CourtBlum v. Yaretsky, 457 U.S. 991 (1982)Blum v. YaretskyNo. 80-1952Argued March 24, 1982Decided June 25, 1982457 U.S. 991SyllabusAs a participating State in the Medicaid program established by the Social Security Act, New York provides Medicaid assistance to eligible persons who receive care in private nursing homes, which are designated as either "skilled nursing facilities" (SNF's) or "health related facilities" (HRF's), the latter providing less extensive, and generally less expensive, medical care than the former. The nursing homes are directly reimbursed by the State for the reasonable cost of health care services. To obtain Medicaid assistance, an individual must satisfy eligibility standards in terms of income or resources and must seek medically necessary services. As to the latter requirement, federal regulations require each nursing home to establish a utilization review committee (URC) of physicians whose functions include periodically assessing whether each patient is receiving the appropriate level of care, and thus whether the patient's continued stay in the facility is justified. Respondents, who were Medicaid patients in an SNF, instituted a class action in Federal District Court after the nursing home's URC decided that they should be transferred to a lower level of care in an HRF and so notified local officials, and after administrative hearings resulting in affirmance by state officials of the local officials' decision to discontinue benefits unless respondents accepted transfer to an HRF. Respondents alleged, inter alia, that they had not been afforded adequate notice either of the URC decisions and the reasons supporting them or of their right to an administrative hearing to challenge those decisions, as required by the Due Process Clause of the Fourteenth Amendment. Respondents later added claims as to procedural safeguards that should also apply to URC decisions transferring a patient to a higher level of care and to transfers of any kind initiated by the nursing homes themselves or by the patients' attending physicians. Ultimately, the court approved a consent judgment establishing procedural rights applicable to URC-initiated transfers to lower levels of care, and ruled in respondents' favor as to transfers to higher levels of care and all transfers initiated by the facility or its agent. The court permanently enjoined petitioner state officials and all SNF's and HRF's in the State from permitting Page 457 U. S. 992 or ordering discharges of class members, or their transfers to a different level of care, without prior written notice and an evidentiary hearing. The Court of Appeals affirmed, holding that URC-initiated transfers to a higher level of care, and all discharges and transfers by nursing homes or attending physicians, involved "state action" for purposes of the Fourteenth Amendment.Held:1. Respondents have standing to challenge the procedural adequacy of facility-initiated discharges and transfers to lower levels of care. Although respondents were threatened only with URC-initiated transfers to lower levels of care, and although the consent judgment in the District Court halted implementation of such URC decisions, the threat that the nursing homes might determine, independently of the URC decisions, that respondents' continued stay at current levels of care was not medically necessary is not imaginary or speculative but is quite realistic. However, the threat of transfers to higher levels of care is not of sufficient immediacy and reality that respondents presently have standing to seek an adjudication of the procedures attending such transfers. Thus, the District Court exceeded its authority under Art. III in adjudicating the procedures governing transfers to higher levels of care. Pp. 457 U. S. 999-1002.2. Respondents failed to establish "state action" in the nursing homes' decisions to discharge or transfer Medicaid patients to lower levels of care, and thus failed to prove that petitioners have violated rights secured by the Fourteenth Amendment. Pp. 457 U. S. 1002-1012.(a) The mere fact that a private business is subject to state regulation does not, by itself, convert its action into that of the State for purposes of the Fourteenth Amendment. A State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement that the choice must in law be deemed to be that of the State. Pp. 457 U. S. 1003-1005.(b) The fact that the State responds to the nursing homes' discharge or transfer decisions by adjusting the patients' Medicaid benefits does not render it responsible for those decisions. Moreover, the pertinent statutes and regulations do not constitute affirmative commands by the State for summary discharge or transfer of Medicaid patients who are thought to be inappropriately placed in nursing facilities. The State, by requiring completion by physicians or nursing homes of forms relating to a patient's condition and discharge or transfer decisions, is not responsible for the decisions of the physicians or nursing homes. Those decisions ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State. Similarly, regulations imposing penalties on nursing homes that fail to discharge or transfer patients whose continued stay is inappropriate do Page 457 U. S. 993 not themselves dictate the decision to discharge or transfer in a particular case. And even though the State subsidizes the cost of the facilities, pays the expenses of the patients, and licenses the facilities, the action of the nursing homes is not thereby converted into "state action." Nor do the nursing homes perform a function that has been "traditionally the exclusive prerogative of the State," Jackson v. Metropolitan Edison Co., 419 U. S. 345, 419 U. S. 353, so as to establish the required nexus between the State and the challenged action. Pp. 457 U. S. 1005-1012.629 F.2d 817, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, ante p. 457 U. S. 843. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 010121012.

1964_34

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.At issue in this case is the effect of Executive Order No. 8979 and Public Land Order No. 487 upon the Secretary of the Interior's authority to issue oil and gas leases.Between October 15, 1954, and January 28, 1955, D. J. Griffin and other persons -- hereinafter collectively referred to as the Griffin lessees -- filed applications for oil and gas leases on approximately 25,000 acres located in the Kenai National Moose Range in Alaska. On August 14, 1958, the respondents filed offers to lease the same lands. Section 17 of the Mineral Leasing Act of 1920 provides, in relevant part, that"the person first making application for the lease who is qualified to hold a lease . . . shall be entitled to a lease of such lands without competitive bidding. . . ."41 Stat. 443 (1920), as amended by 60 Stat. 951 (1946), 30 U.S.C. § 226 (1958 ed.). The Bureau of Land Management of the Department of the Interior determined that the Griffin lessees were the persons who had applied first, and issued to them leases on the tracts, effective September 1, 1958. Respondents' applications were reached for processing in Page 380 U. S. 3 October, 1959, and were rejected on the ground that the lands had been leased to prior applicants. [Footnote 1]From the rejection of their applications, respondents appealed to the Director of the Bureau of Land Management and then to the Secretary of the Interior, both of whom affirmed the decision. 68 I.D. 256 (1961). Respondents then brought an action in the nature of mandamus, in the United States District Court for the District of Columbia, to compel the Secretary to issue oil and gas leases to them. The District Court granted summary judgment in favor of the Secretary dismissing the complaint. The Court of Appeals for the District of Columbia Circuit reversed, holding that Executive Order No. 8979, the order creating the Moose Range in 1941, and Public Land Order No. 487, issued by the Secretary in 1948, [Footnote 2] had withdrawn the lands in controversy from availability for leasing under the Mineral Leasing Act, and that the lands remained closed to leasing until they were reopened by a revised departmental regulation on August 14, 1958. The court therefore held that the Griffin applications, filed while the land was closed, were ineffective, rendering the leases issued on them nullities; the respondents, as the persons first making application Page 380 U. S. 4 after the promulgation of the 1958 regulation, were held to be entitled to the leases. 116 U.S.App.D.C. 379, 324 F.2d 411 (1963). We granted certiorari, 376 U.S. 961.We conclude that the District Court correctly refused to issue a writ of mandamus, and accordingly reverse the decision of the Court of Appeals. Since their promulgation, the Secretary has consistently construed both orders not to bar oil and gas leases; moreover, this interpretation has been made a repeated matter of public record. While the Griffin leases and others located in the Moose Range have been developed in reliance upon the Secretary"s interpretation, respondents do not claim to have relied to their detriment upon a contrary construction. The Secretary"s interpretation may not be the only one permitted by the language of the orders, but it is quite clearly a reasonable interpretation; courts must therefore respect it. McLaren v. Fleischer, 256 U. S. 477, 256 U. S. 481; Bowles v. Seminole Rock Co., 325 U. S. 410, 325 U. S. 413-414.IThe Mineral Leasing Act of 1920, 41 Stat. 437, 30 U.S.C. § 181 et seq. (1958 ed.), gave the Secretary of the Interior broad power to issue oil and gas leases on public lands not within any known geological structure of a producing oil and gas field. Although the Act directed that if a lease was issued on such a tract, it had to be issued to the first qualified applicant, it left the Secretary discretion to refuse to issue any lease at all on a given tract. United States ex rel. McLennan v. Wilbur, 283 U. S. 414. The Act excluded from its application certain designated lands, [Footnote 3] but did not exclude lands within wildlife refuge areas. Page 380 U. S. 5The Kenai National Moose Range was created in 1941 by Executive Order No. 8979, 6 Fed.Reg. 6471, by which approximately two million acres of the public domain were set aside "as a refuge and breeding ground for moose." The order provided that"(n)one of the above-described lands excepting (a defined area) shall be subject to settlement, location, sale, or entry, or other disposition (except for fish trap sites) under any of the public-land laws applicable to Alaska. . . ."On November 8, 1947, the Secretary promulgated the first general regulation dealing with the issuance of oil and gas leases within wildlife refuges. It provided simply that such leases had to be subjected to an approved unit plan and contain a provision prohibiting drilling or prospecting without the advance consent of the Secretary. 12 Fed.Reg. 7334.On June 16, 1948, the Secretary issued Public Land Order No. 487, 13 Fed.Reg. 3462:"[T]he public lands within the following-described areas in Alaska [including most of that portion of the Moose Range which had been excepted from Executive Order No. 8979] are hereby temporarily withdrawn from settlement, location, sale or entry, for classification and examination, and in aid of proposed legislation:""* * * *" "This order shall take precedence over, but shall not modify . . . the reservation for the Kenai National Page 380 U. S. 6 Moose Range made by Executive Order No. 8979 of December 16, 1941. . . ."Thus, neither Executive Order No. 8979 nor Public Land Order No. 487 expressly withdrew the lands to which it applied from oil and gas leasing. In 1951, however, the Secretary set aside, for uses inconsistent with mineral leasing, minor portions of the lands covered by Public Land Order No. 487:"[T]he following-described public lands in Alaska are hereby withdrawn from all forms of appropriation under the public land laws, including the mining laws and the mineral leasing laws. . . . [Footnote 4]"Had the Secretary thought that Public Land Order No. 487 had already withdrawn the lands covered by it from appropriation under the mineral leasing laws, his reference to such laws in the 1951 orders would have been superfluous.By an intra-agency memorandum dated August 31, 1953, the Director of the Bureau of Land Management advised the Regional Administrators of the Bureau and managers of the local land offices that "a possible revision of policy and regulations" on leasing in wildlife refuges was being studied, and directed them that,"[p]ending the completion of this study and the possible revision of existing regulations, you will suspend action on all pending oil and gas lease offers and applications for lands within such refuges."It is not disputed, and subsequent memoranda make clear, that the 1953 memorandum did not purport to prevent either the issuance of leases with Page 380 U. S. 7 the approval of the national office or the continued filing of lease offers. [Footnote 5] During late 1954 and early 1955, a number of individuals filed applications for oil and gas leases in the northern half of the Moose Range; among these applications were those of the Griffin lessees. Action on them was suspended in accordance with the 1953 directive, but none was rejected on the ground that the land in question was closed to leasing. [Footnote 6]On September 9, 1955, the Secretary issued Public Land Order No. 1212, 20 Fed.Reg. 6795, revoking in its entirety Public Land Order No. 487. After granting certain preferences, it provided:"6. Any of the lands described in paragraphs 4(a), 4(b) or 4(d) of this order then remaining unappropriated, shall become subject to such application, petition, selection, or other form of appropriation by the public generally as may be authorized by the public land laws, including the mineral leasing laws. . . .""7. Commencing at 10:00 a.m. on the 182nd day after the date of this order, any of the unsurveyed lands described in paragraph 4(c) not settled upon by veterans or other persons entitled to credit Page 380 U. S. 8 for service shall become subject to settlement and other forms of appropriation by the public generally, including leasing under the mineral leasing laws. . . ."(Emphasis added.) Respondents make much of the italicized language, which does appear to be inconsistent with the Department's prior interpretation of Public Land Order No. 487 and its actual leasing practices. However, on October 14, 1955 -- 35 days after it was promulgated but before it went into effect, and years before the respondents entered the picture -- Public Land Order No. 1212 was amended to delete the references to the mineral leasing laws. 20 Fed.Reg. 7904.On December 8, 1955, the anticipated revision of the 1947 refuge leasing regulation was promulgated. 20 Fed.Reg. 9009. It was more restrictive than the old regulation, and gave increased power to the Fish and Wildlife Service to approve or disapprove oil and gas development of refuges. It listed in an Appendix A a number of refuges (not including Kenai) in which, because of their importance to the preservation of rare species of plant and animal life, no leasing at all would be permitted. In Appendix B, it listed certain areas (including a small part of the Moose Range not involved here)"with respect to which the Fish and Wildlife Service reports that oil and gas development might seriously impair or destroy the usefulness of the lands for wildlife conservation purposes. . . ."In such Appendix B areas, leasing was to be permitted only upon the approval by the Director of the Fish and Wildlife Service of "a complete and detailed operating program for the area." In all other wildlife areas, the regulation provided that "[o]il and gas leases may be issued" provided they contain specified conditions requiring approval by the Fish and Wildlife Service of the type of prospecting to be conducted, and adoption by the Page 380 U. S. 9 lessee of a unit plan approved by the Service. Respondents argue that, even if it be assumed that (as is clearly the case) the 1955 regulation treated the lands in controversy as open to leasing, the regulation is not probative of the availability of the lands for leasing prior to 1955, and is therefore no evidence that the Secretary viewed the lands as open to leasing at the time the Griffin applications were filed. We think, however, that if the Secretary had been of the opinion that he was changing to status of that part of the Moose Range not covered by Appendix B, rather than merely imposing additional restrictions on leasing therein, he would have done so in terms more express than those used in the 1955 regulation. He did not refer to the Range as a whole; the only reference by name was to those parts of the Range which were specified in order to except them from the general provision that "[o]il and gas leases may be issued" in wildlife refuges. Though this specification supports the inference that the regulation was drafted on the assumption that the remainder of the Range was open to leasing, such indirect implication -- however clearly it confirms the preexisting availability of the Range -- would have been a technique inappropriate for effecting a change of the Range's status. Moreover, the President's 1952 delegation to the Secretary of power to make or modify withdrawals had directed that"[a]ll orders issued by the Secretary of the Interior under the authority of this order shall be designated as public land orders and shall be submitted . . . for filing and for publication in the FEDERAL REGISTER."Executive Order No. 10355, 17 Fed.Reg. 4831 (emphasis added). It may be that a document not labeled a public land order could in legal effect constitute an exercise of that power; however, if the Secretary had meant to exercise such power, it is likely that he would Page 380 U. S. 10 have done so in the manner directed by the President's delegation. [Footnote 7]When bills were introduced in Congress early in 1956 to restrict oil and gas leasing in wildlife refuges, the House Committee on Merchant Marine and Fisheries and the Subcommittee on Merchant Marine and Fisheries of the Senate Committee on Interstate and Foreign Commerce held extensive hearings thereon. The bills as introduced only forbade the Secretary to "dispose of" lands in wildlife refuges, and the question arose during the hearings whether that language would apply to the issuance of oil and gas leases. A representative of the Department asserted, without contradiction, that the granting of an oil and gas lease was not a "disposition," and would not be affected by the language as proposed. Hearings before the House Committee on Merchant Marine and Fisheries on H.R. 5306, etc., 84th Cong., 2d Sess., p. 98. An amendment was accordingly proposed specifically restricting oil and gas leasing. Neither committee reported Page 380 U. S. 11 favorably on the bills. However, the House Committee submitted a report stating that it had been decided to try, for an experimental period of time, an arrangement whereby each proposed alienation or relinquishment of any interest the Fish and Wildlife Service had in lands under its jurisdiction would be submitted to the Committee, which would within 60 days approve or disapprove the action contemplated. H.R.Rep.No. 1941, 84th Cong., 2d Sess., pp. 12-13. This resolution of the issue suggests that the Committee accepted the Department's view that the Secretary had preexisting authority to grant oil and gas leases in the Moose Range, and was concerned only with the way in which he exercised his discretion.Pursuant to the agreement, the House Committee on Merchant Marine and Fisheries held public hearings on July 20 and 25, 1956, on a proposal from the Fish and Wildlife Service for the issuance of 30 oil and gas leases on 71,680 acres in the northern half of the Moose Range -- located within the area encompassed by Executive Order No. 8979 -- for which lease applications had been filed in 1954 by amicus curiae Richfield Oil Corporation and others. The proposal contemplated that the leases would be subject to the Swanson River Unit plan of operation, which had been approved by the Bureau of Land Management, the Geological Survey and the Fish and Wildlife Service, all branches of the Department of the Interior. At the hearing on the proposal, a spokesman for the National Wildlife Federation urged that Executive Order No. 8979 precluded the issuance of the leases. Transcript of Hearings before the House Committee on Merchant Marine and Fisheries, July 20 and 25, 1956, Lease of Portions of Kenai National Moose Range, pp. 17, 19, 24-26. But see id., pp. 35-36; letter, July 24, 1956, Deputy Solicitor, Department of the Interior, to Hon. E. L. Page 380 U. S. 12 Bartlett, Delegate to Congress from Alaska, following id., p. 30. On July 25, 1956, however, the Committee's Chairman advised the Director of the Fish and Wildlife Service that the Committee unanimously had concluded that issuance of the leases would not be detrimental to the wildlife values of the Moose Range, and had concurred in the proposal to issue the leases. [Footnote 8]Following the Committee's approval the leases were issued, an exploratory well was drilled and oil was discovered in commercial quantities in July, 1957. See Rep.Alaska Gov. 88 (1957); Rep.Secy.Int. 356 (1957); Rep.Secy.Int. 104, 199, 258, 356 (1958). The Swanson River leases soon became again a subject of congressional concern, when the Secretary of the Interior -- realizing that although he had authority to issue leases on dry land, he lacked such authority with respect to lands beneath Alaskan inland navigable waters -- asked Congress for authority to issue leases on Alaskan water bottoms, and to add to the leases already issued in Alaska and to applications pending there the water bottoms within their Page 380 U. S. 13 boundaries. [Footnote 9] The Senate Committee reported favorably on the proposed bill, saying:"In Alaska, there is at the present time only one area which is now subject to the Mineral Leasing Act where oil and gas is known to exist in paying quantities, this being on the Kenai Peninsula, as previously described. If, prior to the effective date of this act, the producing structure on the Kenai is defined, then the holders of upland leases in such areas might be forced to compete for areas beneath adjacent lakes and streams. The committee felt that this result would work to the disadvantage of those lessees and developers who have gone ahead and developed this area. . . ."S.Rep. No. 1720, 85th Cong., 2d Sess., p. 5. The bill was subsequently enacted into law. 72 Stat. 322 (1958), 48 U.S.C. § 456 and 30 U.S.C. § 251 (1958 ed.).Meanwhile, the controversy over the leasing policies to be followed in wildlife refuges was resolved by the adoption, on January 8, 1958, of another complete revision of the regulation. 23 Fed.Reg. 227, 43 CFR § 192.9. The revision represented a near-total victory for the conservationists. It altogether prohibited oil and gas leasing, unless necessary to prevent draining, in Page 380 U. S. 14 wildlife refuges -- with two exceptions: lands withdrawn for a dual purpose and wildlife refuges located in Alaska. As to lands falling within these two excepted categories, the Bureau of Land Management and the Fish and Wildlife Service were to reach agreements specifying the lands which "shall not be subject to oil and gas leasing," and to decide on provisions to be required in leases issued on the remaining lands. The agreements were to become effective upon approval by the Secretary and publication in the Federal Register. The regulation further provided that"[a]ll pending offers or applications heretofore filed for oil and gas leases covering game ranges, coordination lands, and Alaska wildlife areas will continue to be suspended until the agreements referred to . . . shall have been completed,"and that no new lease applications would "be accepted for filing until the tenth day after the agreements . . . are noted on the land office records."Pursuant to the regulation, there was published in the Federal Register on August 2, 1958, on order of the Secretary announcing the agreement reached with respect to the Moose Range. 23 Fed.Reg. 5883. The order decreed that certain lands within the Range (essentially the southern half) "are hereby closed to oil and gas leasing because such activities would be incompatible with management thereof for wildlife purposes." It then provided:"The balance of the lands within the Kenai National Moose Range are subject to the filing of oil and gas lease offers. . . . Offers to lease covering any of these lands which have been pending and upon which action was suspended in accordance with the regulation 43 CFR 192.9(d) will now be acted upon and adjudicated in accordance with the regulations.""* * * * Page 380 U. S. 15" ". . . [L]ease offers for lands which have not been excluded from leasing will not be accepted for filing until the tenth day after the agreement and map are noted on the records of the land office. . . . [Footnote 10]"The agreement was noted in the Anchorage land office on August 4, 1958, and 10 days later, respondents filed their applications.Soon after the issuance of the regulation and the implementing order, the pending applications were acted upon; within the next two months, 294 leases covering 621,234 acres were issued in the area subject to Executive Order No. 8979, in response to applications (including those of the Griffin lessees) filed in 1954 and 1955. When these figures are added to those covering leases issued prior to 1958 (primarily those in the Swanson River area), it appears that in the area subject to Executive Order No. 8979, the Secretary issued a total of 331 leases covering 696,680 acres on applications filed during the period the Court of Appeals held that the area was closed to leasing. Thus, prior to the commencement of the instant suit, the Secretary had leased substantially the entire area Page 380 U. S. 16 in controversy; [Footnote 11] the Solicitor General further assures us that the lessees and their assignees had, in turn, expended tens of millions of dollars in the development of the leases.IIWhen faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration."To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings."Unemployment Comm's of Territory of Alaska v. Aragon, 329 U. S. 143, 329 U. S. 153. See also e.g., Gray v. Powell, 314 U. S. 402; Universal Battery Co. v. United States, 281 U. S. 580, 281 U. S. 583."Particularly is this respect due when the administrative practice at stake 'involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new.'"Power Reactor Development Co., v. International Union of Electricians, 367 U. S. 396, 367 U. S. 408. When the construction of an administrative regulation, rather than a statute, is in issue, deference is even more clearly in order."Since this involves an interpretation of 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 Page 380 U. S. 17 it is plainly erroneous or inconsistent with the regulation."Bowles v. Seminole Rock Co., 325 U. S. 410, 325 U. S. 413-414. In the instant case, there is no statutory limitation involved. While Executive Order No. 8979 was issued by the President, he soon delegated to the Secretary full power to withdraw lands or to modify or revoke any existing withdrawals. See Executive Order No. 9146, 7 Fed.Reg. 3067; Executive Order No. 9337, 8 Fed.Reg. 5516; Executive Order No. 10355, 17 Fed.Reg. 4831. Public Land Order No. 487 was issued by the Secretary himself.Moreover, as the discussion in 380 U. S. the Secretary has consistently construed Executive Order No. 8979 and Public Land Order No. 487 not to bar oil and gas leases."It may be argued that, while these facts and rulings prove a usage, they do not establish its validity. But government is a practical affair, intended for practical men. Both officers, lawmakers, and citizens naturally adjust themselves to any long-continued action of the Executive Department, on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle, but the basis of a wise and quieting rule that, in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself -- even when the validity of the practice is the subject of investigation."United States v. Midwest Oil Co., 236 U. S. 459, 236 U. S. 472-473. The Secretary's interpretation had, long prior to respondents' applications, been a matter of public record and discussion. The agreement worked out with the House Committee on Merchant Marine and Fisheries in 1956, and the approval of the Swanson River leases pursuant thereto, Page 380 U. S. 18 though probably constituting no "legislative ratification" in any formal sense, [Footnote 12] serve to demonstrate the notoriety of the Secretary's construction, and thereby defeat any possible claim of detrimental reliance upon another interpretation. Finally, almost the entire area covered by the orders in issue has been developed, at very great expense, in reliance upon the Secretary's interpretation. In McLaren v. Fleischer, 256 U. S. 477, 256 U. S. 480-481, it was held:"In the practical administration of the act, the officers of the land department have adopted and given effect to the latter view. They adopted it before the present controversy arose or was thought of, and, except for a departure soon reconsidered and corrected, they have adhered to and follow it ever since. Many outstanding titles are based upon it, and much can be said in support of it. If not the only reasonable construction of the act, it is at least an admissible one. It therefore comes within the rule that the practical construction given to an act of Congress fairly susceptible of different constructions by those charged with the duty of executing it is entitled to great respect, and, if acted upon for a number of years, will not be disturbed except for cogent reasons."If, therefore, the Secretary's interpretation is not unreasonable, if the language of the orders bears his construction, we must reverse the decision of the Court of Appeals. [Footnote 13] Page 380 U. S. 19IIIExecutive Order No. 8979, 6 Fed.Reg. 6471, provided:"None of the above-described lands excepting [a described area] shall be subject to settlement, location, sale, or entry, or other disposition (except for fish trap sites) under any of the public land laws applicable to Alaska, or to classification and lease under the provisions of the act of July 3, 1926, entitled 'An Act to provide for the leasing of public lands in Alaska for fur farming, and for other purposes,' 44 Stat. 821, U.S.C., title 48, secs. 360-361, or the Act of March 4, 1927, entitled 'An Act to provide for the protection, development, and utilization of the public lands in Alaska by establishing an adequate system for grazing livestock thereon', 44 Stat. 1452, U.S.C., title 48, secs. 471-471o. . . .""Settlement," "location," "sale" and "entry" are all terms contemplating transfer of title to the lands in question. It was therefore reasonable for the Secretary to construe "or other disposition" to encompass only dispositions which, like the four enumerated, convey or lead to the conveyance of the title of the United States -- for example, "grants" and "allotments." Cf. Opinion of the Solicitor, 48 I.D. 459 (1921). [Footnote 14] An oil and gas lease does not vest title to the lands in the lessee. See Boesche v. Udall, 373 U. S. 472, 373 U. S. 477-478. Moreover, the term "public land laws" is ordinarily used to refer to statutes governing the alienation of public land, and generally is distinguished from both "mining laws," referring to statutes governing the mining of hard minerals on public lands, and "mineral leasing laws," a term used to designate that group of statutes governing the leasing of public Page 380 U. S. 20 lands for gas and oil. Compare Title 43 U.S.C., Public Lands, with Title 30 U.S.C., Mineral Lands and Mining. [Footnote 15]The reference in Executive Order No. 8979 to the 1926 and 1927 statutes also lends support to the Secretary's interpretation. For both statutes relate to leasing, rather than alienation of title; it would be reasonable to infer from their specific addition that "disposition" was not intended to encompass leasing. [Footnote 16] The Secretary also might reasonably have been influenced by a belief that in view of his overriding discretionary authority to refuse to issue an oil and gas lease on a given tract whenever he thought that granting a lease would undercut the purposes of the withdrawal, inclusion of such leases in the withdrawal order would have been unnecessary. Cf. Haley v. Seaton, 108 U.S.App.D.C. 257, 281 F.2d 620 (1960). Page 380 U. S. 21Respondents' reliance upon Wilbur v. United States ex rel. Barton, 60 App.D.C. 11, 46 F.2d 217 (1930), aff'd sub nom. United States ex rel. McLennan v. Wilbur, 283 U. S. 414, is misplaced. Involved in Wilbur was the meaning of language contained in the Pickett Act, 36 Stat. 847 (1910), 43 U.S.C. § 141 (1958 ed.)."[T]he President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska. . . ."It is true that the Court of Appeals for the District of Columbia Circuit squarely held this language to be sufficient to authorize withdrawals from oil and gas leasing. Moreover, this Court affirmed, albeit on an alternative theory: that the Mineral Leasing Act merely authorized, and did not compel, the issuance of prospecting permits. 283 U.S. at 283 U. S. 419. However, a word of history will place Wilbur in context, and thereby demonstrate its irrelevance to the problem here. Prior to 1920, oil and gas rights in public lands were acquired in the same way as rights in other minerals -- by a form of "location." One staked out a location and prospected for oil or other minerals; upon making a discovery, he became entitled to a patent to the land, as well as the minerals. In 1909, responding to rapid reserve depletion in certain areas, the Interior Department issued an order pursuant to Presidential authorization:"In aid of proposed legislation affecting the use and disposition of the petroleum deposits on the public domain, all public lands in [a defined area of over 3 million acres in California and Wyoming] are hereby temporarily withdrawn from all forms of location, settlement, selection, filing, entry, or disposal under the mineral or nonmineral public land Page 380 U. S. 22 laws. . . ."U.S. Geological Survey, Bull. 623, H.R.Doc. No. 868, 64th Cong., 1st Sess., 135 (1916); quoted, 236 U.S. at 236 U. S. 467.The power of the executive to make the withdrawal was upheld by this Court in 1915 in United States v. Midwest Oil Co., 236 U. S. 459. In the meantime, however, Congress had, pursuant to the President's request, sought to remove all doubts about the legality of such orders by granting to him, in the Pickett Act, discretionary authority to withdraw public lands from "settlement, location, sale, or entry."The Mineral Leasing Act of 1920 changed the procedure for acquiring oil and gas rights in public lands: the Secretary was empowered to issue prospecting permits and required, in the event a discovery was made under the permit, to issue a lease which entitled the lessee to extract the mineral, but gave him no right in the land itself. [Footnote 17] From 1920 on, therefore, the language of the Pickett Act no longer technically encompassed leasing. Nonetheless, it was clear that the Act had been specifically designed to legitimize orders like the 1909 withdrawal order. The Court of Appeals reasonably concluded in Wilbur that the fact that Congress had in 1920 changed the procedure -- from "location" to "leasing" -- for acquisition of oil and gas rights afforded no reason for concluding that they had thereby intended to cut back the power granted in 1910. 60 App.D.C. at 14-15, 46 F.2d at 220-221. Thus, neither that holding by the Court of Appeals nor this Court's affirmance in any way casts doubt upon the reasonableness of the Secretary's interpretation of the orders at bar, which were drafted long after the Mineral Leasing Page 380 U. S. 23 Act had done away with location as a means of acquiring oil and gas rights.The placement of the fish trap exception -- "(except for fish trap sites)" -- a phrase admittedly not relating to alienation of title to land, does tend to cut against the Secretary's interpretation of Executive Order No. 8979. However, it appears that the exception was designed to assure the Alaskans, whose livelihood is largely dependent on the salmon catch, that they could continue -- despite the order -- to use fish traps. Cf. Organized Village of Kake v. Egan, 369 U. S. 60. Since it was a reassurance not technically necessary, and therefore not functionally related to any part of the regulation, it is no surprise to find it carelessly placed. Compare Executive Order No. 8857, 6 Fed.Reg. 4287, establishing the Kodiak National Wildlife Refuge. We do not think the position of the fish trap exception is sufficient to justify a court's overturning the Secretary's construction as unreasonable.Public Land Order No. 487 withdrew the lands it covered from "settlement, location, sale or entry," but contained no reference to "other disposition." Nor did it contain anything analogous to the fish trap exception. The reasonableness of the Secretary's interpretation of Public Land Order No. 487 therefore follows a fortiori from the reasonableness of his construction of Executive Order No. 8979.Reversed

U.S. Supreme CourtUdall v. Tallman, 380 U.S. 1 (1965)Udall v. TallmanNo. 34Argued October 22, 26, 1964Decided March 1, 1965380 U.S. 1SyllabusSince their promulgation, the Secretary of the Interior has consistently construed Executive Order No. 8979 and Public Land Order No. 487, relating to the disposition of public lands located in the Kenai National Moose Range in Alaska, not to bar the issuance of oil and gas leases. His interpretation has been made a repeated matter of public record, and a number of leases have been developed at great expense in reliance on it. If, therefore, his interpretation of the orders is not unreasonable, courts must respect it. Pp. 380 U. S. 4-18.(a) The Secretary's interpretation of Executive Order No. 8979, which withdrew the lands covered by it from "settlement, location, sale, or entry, or other disposition (except for fish trap sites) under any of the public land laws applicable to Alaska," though not the only interpretation permitted by the language of the order, is a reasonable interpretation. Pp. 380 U. S. 19-23.(b) Wilbur v. United States ex rel. Barton, 60 App.D.C. 11, 46 F.2d 217 (1930), aff'd sub nom. United States ex rel. McLennan v. Wilbur, 283 U. S. 414, distinguished. Pp. 380 U. S. 21-23.(c) The reasonableness of the Secretary's interpretation of Public Land Order No. 487 follows a fortiori from the reasonableness of his interpretation of Executive Order No. 8979. P. 380 U. S. 23.116 U.S.App.D.C. 379, 324 F.2d 411, reversed. Page 380 U. S. 2

1980_80-756

JUSTICE POWELL delivered the opinion of the Court.The Medicaid program provides federal funds to States that pay for medical treatment for the poor. An individual's entitlement to Medicaid benefits depends on the financial resources "available" to him. Some States determine eligibility by assuming -- "deeming" -- that a portion of the spouse's income is "available" to the applicant. "Deeming" thus has the effect of reducing both the number of eligible individuals and the amount of assistance paid to those who qualify. The question in this case is whether the federal regulations that permit States to "deem" income in this manner are arbitrary, capricious, or otherwise unlawful.IThe Medicaid program, established in 1965 as Title XIX of the Social Security Act (Act), 79 Stat. 343, as amended, 42 U.S.C. § 1396 et seq. (1976 ed. and Supp. III), "provid[es] federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons." Harris v. McRae, 448 U. S. 297, 448 U. S. 301 (1980). Each participating State develops a plan containing "reasonable standards . . . for determining eligibility for and the extent of medical assistance." 42 U.S.C. § 1396a(a)(17). An individual is entitled to Medicaid if he fulfills the criteria established by Page 453 U. S. 37 the State in which he lives. State Medicaid plans must comply with requirements imposed both by the Act itself and by the Secretary of Health and Human Services (Secretary). See § 1396a (1976 ed. and Supp. III).AAs originally enacted, Medicaid required participating States to provide medical assistance to "categorically needy" individuals who received cash payments under one of four welfare programs established elsewhere in the Act. See § 1396a(a)(10) (1970 ed.). The categorically needy were persons whom Congress considered especially deserving of public assistance because of family circumstances, age, or disability. [Footnote 1] States, if they wished, were permitted to offer assistance also to the "medically needy" -- persons lacking the ability to pay for medical expenses, but with incomes too large to qualify for categorical assistance. In either case, the Act required the States to base assessments of financial need only on"such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient."§ 1396a(a)(17)(B) (emphasis added). Specifically, eligibility decisions could"not take into account the financial responsibility of any individual for any applicant or recipient of assistance . . . unless such applicant or recipient is such individual's spouse"or minor, blind or disabled child. § 1396a(a)(17)(D).Believing it reasonable to expect an applicant's spouse to help pay medical expenses, some States adopted plans that considered the spouse's income in determining Medicaid eligibility and benefits. [Footnote 2] These States calculated an amount Page 453 U. S. 38 considered necessary to pay the basic living expenses of the spouse and "deemed" any of the spouse's remaining income to be "available" to the applicant, even where the applicant was institutionalized, and thus no longer living with the spouse.BIn 1972, Congress replaced three of the four categorical assistance programs with a new program called Supplemental Security Income for the Aged, Blind, and Disabled (SSI), 42 U.S.C. § 1381 et seq., Pub.L. 92-603, 86 Stat. 1465. [Footnote 3] Under SSI, the Federal Government displaced the States by assuming responsibility for both funding payments and setting standards of need. In some States, the number of individuals eligible for SSI assistance was significantly larger than the number eligible under the earlier, state-run categorical need programs.The expansion of general welfare accomplished by SSI portended increased Medicaid obligations for some States because Congress retained the requirement that all recipients of categorical welfare assistance -- now SSI -- were entitled to Medicaid. Congress feared that these States would withdraw from the cooperative Medicaid program rather than expand their Medicaid coverage in a manner commensurate with the expansion of categorical assistance. "[I]n order not to impose a substantial fiscal burden on these States" or discourage them from participating, see S.Rep. No. 93-553, p. 56 (1973), Congress offered what has become known as the "§ 209(b) option." [Footnote 4] Under it, States could elect to provide Medicaid assistance Page 453 U. S. 39 only to those individuals who would have been eligible under the state Medicaid plan in effect on January 1, 1972. [Footnote 5] States thus became either "SSI States" or "§ 209(b) States" depending on the coverage that they offered. [Footnote 6]The Secretary promulgated regulations governing the administration of Medicaid benefits in both SSI States and § 209(b) States. The regulations described the circumstances in which the income of one spouse may be "deemed" available to the other. In SSI States, "deeming" is conducted in the following manner: when the applicant and his spouse live in the same household, the spouse's income and resources always are considered in determining eligibility, "whether or not they are actually contributed." 42 CFR § 435.723(b) (1980). When the applicant and spouse cease to share the Page 453 U. S. 40 same household, the spouse's income is disregarded the next month, § 435.723(d), unless both are eligible for assistance. In the latter case, the income of both is considered for six months after their separation. § 435.723(c).Greater "deeming" is authorized in § 209(b) States. The regulations require such States to "deem" income at least to the extent required in SSI States. § 435.734. And, if they choose, § 209(b) States may "deem" to the full extent that they did before 1972. Ibid. [Footnote 7]IIRespondent, an organization dedicated to helping the Nation's elderly, [Footnote 8] filed this suit in the District Court for the District of Columbia attacking some of the Secretary's regulations applicable in § 209(b) States. [Footnote 9] Respondent argued that "deeming" impermissibly employs an "arbitrary formula" to impute a spouse's income to an institutionalized Medicaid applicant. According to respondent, "deeming" is inconsistent with § 1902(a)(17) of the Act, 42 U.S.C. Page 453 U. S. 41 § 1396a(a)(17), which provides that only income "available" to the applicant may be considered in establishing entitlement to and the amount of Medicaid benefits. [Footnote 10] In respondent's view, before a State may take into account the income of a spouse in calculating the benefits of any institutionalized applicant, the State must make a factual determination that the spouse's income actually is contributed to that applicant.The District Court agreed with respondent and declared the regulations invalid. Gray Panthers v. Secretary, Dept. of HEW, 461 F. Supp. 319 (1978). [Footnote 11] The Court of Appeals for the District of Columbia Circuit affirmed, but under a different theory. Gray Panthers v. Administrator, Health Care Financing Administration, 203 U.S.App.D.C. 146, 629 F.2d 180 (1980). Citing this Court's decision in Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 (1971), the Page 453 U. S. 42 court held that the regulations were invalid because the Secretary, in authorizing "deeming" of income between noncohabiting spouses, had failed to "tak[e] . . . into account" two "relevant factors." 203 U.S.App.D.C. at 149-150, 629 F.2d at 183-184. First, where spouses are separated they maintain two households, rather than one. For those already put to this additional expense, it is unfair to continue to treat the couple as a "single economic unit" jointly responsible for the medical expenses of each. Id. at 151, 629 F.2d at 185. Second, the requirement of support carries with it the potential to interject "disruptive forces" into people's lives. Id. at 152, 629 F.2d at 186. The noninstitutionalized spouse is"faced with the 'choice' of reducing his or her standard of living to a point apparently set near the poverty line, or being responsible for the eviction of his or her spouse from the institution."Ibid. One aspect of this "disruption," according to the court, was the fact that the "deeming" requirement creates an incentive for couples to divorce. Id. at 152, n. 14, 629 F.2d at 186, n. 14. Because the court believed that the Secretary had not adequately considered these effects of "deeming," it affirmed the District Court's order invalidating the regulations and remanded to the Secretary for reconsideration. [Footnote 12] Page 453 U. S. 43We granted certiorari sub nom. Harris v. Gray Panthers, 449 U.S. 1123 (1981), to resolve disagreement among the Courts of Appeals over the validity of "deeming" income in determining Medicaid benefits. [Footnote 13]IIICongress explicitly delegated to the Secretary broad authority to promulgate regulations defining eligibility requirements for Medicaid. We find that the regulations at issue in this case are consistent with the statutory scheme, and also are reasonable exercises of the delegated power. The Court of Appeals therefore was not justified in invalidating them, and we reverse.AThe Social Security Act is among the most intricate ever drafted by Congress. Its Byzantine construction, as Judge Friendly has observed, makes the Act "almost unintelligible to the uninitiated." Friedman v. Berger, 547 F.2d 724, 727, n. 7(CA2 1976), cert. denied, 430 U.S. 984 (1977). [Footnote 14] Perhaps appreciating the complexity of what it had wrought, Congress conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the Act. Batterton v. Francis, 432 U. S. 416, 432 U. S. 425 (1977). Of special relevance in the present case is the delegation of authority in § 1902(a)(17)(B) of the Act, 42 U.S.C. § 1396a(a)(17)(B), one of the provisions setting requirements for state Medicaid plans. Participating States must grant benefits to eligible persons "taking into account only such income Page 453 U. S. 44 and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant" (emphasis added).In view of this explicit delegation of substantive authority, the Secretary's definition of the term "available" is "entitled to more than mere deference or weight," Batterton v. Francis, 432 U.S. at 432 U. S. 426. Rather, the Secretary's definition is entitled to "legislative effect" because,"[i]n a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term."Id. at 432 U. S. 425. Although we do not abdicate review in these circumstances, our task is the limited one of ensuring that the Secretary did not "excee[d] his statutory authority," and that the regulation is not arbitrary or capricious. Id. at 432 U. S. 426.BWe do not think that the regulations at issue, insofar as they authorize some "deeming" of income between spouses, exceed the authority conferred on the Secretary by Congress. Section 1902(a)(17)(D) of the Act, 42 U.S.C. § 1396a(a)(17)(D), enacted in 1965, provides that, in calculating benefits, state Medicaid plans must not"take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual's spouse or such individual's child who is under age 21 or [in certain circumstances] is blind or disabled. . . ."(Emphasis added.) It thus is apparent that, from the beginning of the Medicaid program, Congress authorized States to presume spousal support. Norman v. St. Clair, 610 F.2d 1228, 1236 (CA5 1980), cert. pending sub nom. Schweiker v. Norman, No. 8098.The legislative history of this provision is fully consistent with its language. The Senate and House Reports accompanying the 1965 amendments used virtually identical language Page 453 U. S. 45 in endorsing the concept of "deeming" between spouses. The Senate Report states in pertinent part:"The committee believes it is proper to expect spouses to support each other and parents to be held accountable for the support of their minor children. . . . Such requirements for support may reasonably include the payment by such relative, if able, for medical care. Beyond such degree of relationship, however, requirements imposed are often destructive and harmful to the relationships among members of the family group. Thus, States may not include in their plans provisions for requiring contributions from relatives other than a spouse or the parent of a minor child. . . ."S.Rep. No. 404, 89th Cong., 1st Sess., 78 (1965)(emphasis added). Accord, H.R.Rep. No. 213, 89th Cong., 1st Sess., 68 (1965). Senator Long, who headed the Senate's conference delegation, summarized the effect of subsection (17) as follows:"No income can be imputed to an individual unless actually available; and the financial responsibility of an individual for an applicant may be taken into account only if the applicant is the individual's spouse. . . ."111 Cong.Rec. 18350 (1965). This confirms our view that "Congress intended that income deemed from a spouse" could "be a part of the available' income which the state may consider in determining eligibility." Norman v. St. Clair, supra, at 1237.If "deeming" were not permissible, subsection (17)(D) would be superfluous. Payments actually received by a Medicaid applicant -- whether from a spouse or a more distant relative -- are taken into account automatically. Thus, if there is to be content to subsection (17)(D)'s distinction between the responsibility of a spouse and that of a more distant relative, the subsection must envision that States can "deem" the income of the former, but not the latter. See 610 F.2d at 1237. Page 453 U. S. 46Respondent is unable to offer a persuasive alternative explanation of subsection (17)(D). It suggests that Congress included the subsection simply to permit States to enforce their "relative responsibility laws" against a noncontributing spouse. In other words, respondent believes that Congress intended to prohibit States from automatically taking into account a spouse's income in computing benefits, but simultaneously to authorize States to sue any spouse who failed to contribute income to a Medicaid applicant. We find this argument unpersuasive. It is not"an answer to say that the state can take action against the spouse to recover that which the spouse was legally obligated to pay. [It is] unrealistic to think that the state will engage in a multiplicity of continuing individual lawsuits to recover the money that it should not have had to pay out in the first place. [Because States cannot practically do so, there would be] an open invitation for the spouse to decide that he or she does not wish to make the excess payment."Brown v. Stanton, 617 F.2d 1224, 1234 (CA7 1980) (Pell, J., dissenting in part and concurring in part), cert. pending, No. 79-1690. [Footnote 15] Nothing in the 1972 amendments suggests that Congress intended to terminate the practice of "deeming" already contained in many state plans; rather, Congress appears to have ratified this practice implicitly. As noted above, the 1972 SSI program consolidated and set national standards for three of the four categorical grant programs. Traditionally, all recipients of categorical aid were entitled to Medicaid. Congress, however, did not want to force additional Medicaid obligations on States. It therefore enacted § 209(b) Page 453 U. S. 47 to ensure that States that do not wish to do so would not have to enlarge Medicaid eligibility to SSI levels. States using the § 209(b) option thus were told they could retain virtually all [Footnote 16] of the Medicaid eligibility limitations -- including "deeming" -- that were allowed under the original Act.CRespondent nevertheless insists that the Secretary's regulation is inconsistent with provisions of the statute, and also contrary to statements in the legislative history. The Act requires Medicaid determinations to be made only on the basis of the income "available to the applicant." 42 U.S.C. § 1396a(a)(17)(B) (emphasis added). According to respondent, the use of that term demonstrates that Medicaid entitlements must be determined on the basis of income "actually in the hands . . . of the institutionalized spouse," Tr. of Oral Arg. 30, not imputed on the basis of an "arbitrary formula." Respondent acknowledges the duty of spousal support as a general matter, id. at 26-27, but argues that the Act nevertheless requires an individualized determination of availability in each case.We take a different view. It is clear beyond doubt that Congress was wary of imputing the income of others to a Medicaid applicant. [Footnote 17] Yet, as we noted above, Congress treated spouses differently from most other relatives by explicitly authorizing state plans to "take into account the financial responsibility" of the spouse. 42 U.S.C. § 1396a(a)(17)(D). Congress thus demonstrated that "deeming" is not Page 453 U. S. 48 antithetical to the general statutory requirement that Medicaid eligibility be based solely on resources "available" to the applicant. "Available" resources are different from those in hand. We think that the requirement of availability refers to resources left to a couple after the spouse has deducted a sum on which to live. It does not, as respondent argues, permit the State only to consider the resources actually paid by the spouse to the applicant. See Herweg v. Ray, 19 F.2d 1265, 1272 (CA8 1980) (en banc) (opinion of Ross, J.) (aff'g by an equally divided court 481 F. Supp. 914 (SD Iowa 1978)), cert. pending, No. 80-60.Sound principles of administration confirm our view that Congress authorized "deeming" of income between spouses. The administration of public assistance based on the use of a formula is not inherently arbitrary. Cf. Weinberger v. Salfi, 422 U. S. 749, 422 U. S. 781, 422 U. S. 782, 422 U. S. 784 (1975). There are limited resources to spend on welfare. To require individual determinations of need would mandate costly factfinding procedures that would dissipate resources that could have been spent on the needy. Id. at 422 U. S. 784. Sometimes, of course, Congress has required individualized findings of fact. [Footnote 18] In this case, however, the Act and legislative history make clear that Congress approved some "deeming" of income between individuals and their spouses, at least where States had enacted rules to this effect before 1972.IVWe are not without sympathy for those with minimal resources for medical care. [Footnote 19] But our "sympathy is an insufficient Page 453 U. S. 49 basis for approving a recovery" based on a theory inconsistent with law. Potomac Electric Power Co. v. Director, OWCP, 449 U. S. 268, 449 U. S. 284 (1980). [Footnote 20] This suit is a direct attack on regulations authorizing the concept of "deeming" in the abstract. Hardships resulting from provisions in particular state plans that set aside inadequate sums for the contributing spouse, see n19, supra, are not at issue here. [Footnote 21]We hold that the Secretary properly exercised the authority delegated by Congress in promulgating regulations permitting "deeming" of income between spouses in § 209(b) Page 453 U. S. 50 States. Cf. Batterton v. Francis, 432 U. S. 416 (1977). [Footnote 22] Accordingly, we reverse the decision under review and remand for proceedings consistent with this opinion. [Footnote 23]It is so ordered

U.S. Supreme CourtSchweiker v. Gray Panthers, 453 U.S. 34 (1981)Schweiker v. Gray PanthersNo. 80 756Argued April 29, 1981Decided June 25, 1981453 U.S. 34SyllabusThe Medicaid program provides federal funds to States that pay for medical treatment for needy persons. Section 1902(a)(17)(D) of the Social Security Act provides that, in calculating benefits, state Medicaid plans must not"take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual's spouse"or minor, blind, or disabled child. Section 1902(a)(17)(B) requires participating States to grant benefits to eligible persons taking into account only such income and resources that are, "as determined in accordance with standards prescribed by the Secretary [of Health and Human Services], available to the applicant." The Secretary promulgated regulations describing the circumstances in which the income of one spouse may be "deemed" available to the other for purposes of determining eligibility for Medicaid benefits. In States participating in the program called Supplemental Security Income for the Aged, Blind, and Disabled (SSI), which substantially replaced the former state-run categorical need plans and enlarged eligibility for Medicaid benefits, the regulations provide that, when the applicant and his spouse live in the same household, the spouse's income and resources always must be considered in determining eligibility whether or not they are actually contributed, and that, when the applicant and spouse cease to share the same household, the spouse's income will be disregarded the next month unless both are eligible for assistance, in which case the income of both is considered for six months. Greater "deeming" is authorized in States which have exercised the option under § 209(b) of the 1972 amendments to the Social Security Act of electing not to enlarge Medicaid eligibility to SSI levels. Respondent, an organization dedicated to helping the elderly, filed suit in Federal District Court attacking the regulations applicable in the § 209(b) States on the ground that "deeming" impermissibly employs an "arbitrary formula" to impute a spouse's income to an institutionalized applicant, and thus is inconsistent with § 1902(a)(17)(B). Respondent claimed that, before a State may take into account the spouse's income in calculating an institutionalized applicant's benefits, it must Page 453 U. S. 35 make a factual determination that the spouse's income actually is contributed to that applicant. The District Court agreed, and declared the regulations invalid. The Court of Appeals affirmed, but on the ground that the regulations were invalid because the Secretary, in promulgating them, had failed to consider the unfairness of treating separated spouses as a "single economic unit" and the disruption caused by the requirement of support from the applicant's spouse.Held: The regulations at issue are consistent with the statutory scheme, and are reasonable exercises of the authority delegated to the Secretary. Pp. 453 U. S. 43-50.(a) In view of the explicit delegation of substantive authority to the Secretary in § 1902(a)(17)(B), his definition of the term "available" is entitled to "legislative effect," rather than mere deference or weight. Pp. 453 U. S. 43-44.(b) The language of § 1902(a)(17)(D), which was enacted as part of the original Medicaid program, makes it clear that, from the beginning of the program, Congress authorized States to presume spousal support. And this provision's legislative history is fully consistent with its language. By enacting § 209(b), Congress in effect told States that wished to use the § 209(b) option that they could retain virtually all of the Medicaid eligibility limitations, including "deeming," that were allowed under the original Act. Pp. 453 U. S. 44-47.(c) In treating spouses differently from most other relatives by explicitly authorizing state plans "to take into account the financial responsibility" of the spouse, Congress demonstrated that "deeming" is not antithetical to the general statutory requirement that Medicaid eligibility be based solely on resources "available" to the applicant. "Available" resources are different from those in hand. The requirement of availability refers to resources left to a couple after the spouse has deducted a sum on which to live, and does not require a State to consider only the resources actually paid by the spouse to the applicant. The administration of public assistance based on the use of a formula is not inherently arbitrary. To require individual factual determinations of need would dissipate, in factfinding, resources that could have been spent on the needy. Pp. 453 U. S. 47-48.203 U.S.App.D.C. 146, 629 F.2d 180, reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 453 U. S. 50. Page 453 U. S. 36

1978_77-1609

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.IIn 1975, the Commonwealth of Puerto Rico enacted legislation authorizing its police to search the luggage of any person arriving in Puerto Rico from the United States. Pub. Law 22, P. R. Laws Ann., Tit. 25, § 1051 et seq. (Supp. 1977). [Footnote 1] The "Statement of Motives" in the preamble to the statute indicates that it was enacted in response to a serious increase in the importation of firearms, explosives, and narcotics from Page 442 U. S. 467 the mainland, and a concomitant rise in crime on the island. As construed by the Puerto Rico Supreme Court, Public Law 22 does not require the police to have probable cause to believe that they will find contraband before they search baggage. However, it does not appear that the luggage of all travelers arriving from the mainland is subject to this kind of search.Appellant Terry Torres, a resident of Florida, arrived at San Juan's Isla Verde Airport aboard a nonstop commercial flight from Miami. An officer's suspicions were aroused when he observed that Torres seemed nervous, and kept looking at an armed, uniformed officer stationed nearby. There was, however, no articulable reason to suspect that Torres was carrying contraband. When Torres claimed his baggage, the officer stopped him, identified himself as an agent of the Criminal Investigation Bureau, and presented Torres with a card describing the provisions of Public Law 22. The uniformed officer approached at the same time; Torres was taken with his luggage to the Bureau's office at the airport.Once there, the officer asked Torres if he understood what was written on the card. Torres said that he did, but he objected to having his luggage searched and asked to telephone his uncle, a Puerto Rico attorney. The officer refused to allow him to place the call, stating that he could contact a lawyer if it appeared that he had committed a crime. Torres then yielded to the search and unlocked his bags.The search revealed one ounce of marihuana, a wooden pipe bearing marihuana residue, and approximately $250,000 in cash. Torres was charged, tried, and convicted of violating 404 of the Controlled Substances Act of Puerto Rico, P.R.Laws Ann., Tit. 24, § 2404 (Supp. 1977). A sentence of from one to three years' imprisonment was imposed.On appeal to the Supreme Court of Puerto Rico, Torres contended that the search pursuant to Public Law 22 violated the federal constitutional prohibition against unreasonable searches. Only seven of the eight justices of the Puerto Rico Page 442 U. S. 468 Supreme Court participated in considering the appeal; four of the seven concluded that Public Law 22 violated the Fourth Amendment. Three justices held Public Law 22 constitutional. Article V, § 4, of the Puerto Rico Constitution provides that no law may be held unconstitutional except by a majority of all the members of the Supreme Court. Accordingly, there being only a minority of the justices so holding, the court entered a judgment stating:"The search of appellant's belongings being based on the provisions of Act No. 22 of August 6, 1975, and considering the absence of the majority vote required by the Constitution to annul said Act, the judgment appealed is affirmed."(Emphasis added.) We noted probable jurisdiction. 439 U.S. 815 (1978). [Footnote 2]IIDecisions of this Court early in the century limited the application of the Constitution in Puerto Rico. In Downes v. Bidwell, 182 U. S. 244 (1901), we held that Congress could establish a special tariff on goods imported from Puerto Rico to the United States, and that the requirement that all taxes and duties imposed by Congress be uniform throughout the Page 442 U. S. 469 United States, Art. I, § 8, cl. 1, was not applicable to the island. Mr. Justice Edward White's concurring opinion announced the doctrine that the United State could acquire territory without incorporating it into the Nation, and that unincorporated territory was not subject to all the provisions of the Constitution. 182 U.S. at 182 U. S. 287-344. In support of this doctrine, the concurring opinion emphasized that full application of the Constitution to all territory under the control of the United States would create such severe practical difficulties under certain circumstances as to prohibit the United States from exercising its constitutional power to occupy and acquire new lands. Id. at 305-311.The distinction between incorporated and unincorporated territories was first adopted by a majority of the Court in Dorr v. United States, 195 U. S. 138 (1904); the Court sustained the refusal of the territorial government of the Philippines to seek indictments by grand jury or afford petit juries in criminal cases. The Court emphasized that imposition of the jury system on people unaccustomed to common law traditions "may be to work injustice and provoke disturbance, rather than to aid the orderly administration of justice." Id. at 195 U. S. 145-146, 195 U. S. 148. It also suggested that the constitutional guarantees as to juries should not be construed so as to hamper Congress in exercising its constitutional authority to govern the territories. Id. at 195 U. S. 148. The doctrine that the Constitution does not guarantee grand and petit juries in unincorporated territories was applied to Puerto Rico, notwithstanding that its residents theretofore had been granted United States citizenship, in Balzac v. Porto Rico, 258 U. S. 298 (1922).On the other hand, this Court has held or otherwise indicated that Puerto Rico is subject to the First Amendment Speech Clause, id. at 258 U. S. 314; the Due Process Clause of either the Fifth or the Fourteenth Amendment, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 416 U. S. 668-669, n. 5 (1974); and the equal protection guarantee of either the Fifth or the Page 442 U. S. 470 Fourteenth Amendment, Examining Board v. Flores de Otero, 426 U. S. 572, 426 U. S. 599-601 (1976). In Califano v. Torres, 435 U. S. 1, 435 U. S. 4 n. 6 (1978) (per curiam), we assumed without deciding that the constitutional right to travel extends to the Commonwealth.Congress may make constitutional provisions applicable to territories in which they would not otherwise be controlling. Mullaney v. Anderson, 342 U. S. 415, 342 U. S. 419-420 (1952). Congress generally has left to this Court the question of what constitutional guarantees apply to Puerto Rico. Examining Board v. Flores de Otero, supra at 426 U. S. 590. However, because the limitation on the application of the Constitution in unincorporated territories is based in part on the need to preserve Congress' ability to govern such possessions, and may be overruled by Congress, a legislative determination that a constitutional provision practically and beneficially may be implemented in a territory is entitled to great weight.Both Congress' implicit determinations in this respect and long experience establish that the Fourth Amendment's restrictions on searches and seizures may be applied to Puerto Rico without danger to national interests or risk of unfairness. From 1917 until 1952, Congress, by statute, afforded equivalent personal rights to the residents of Puerto Rico. Act of Mar. 2, 1917, § 2, cl. 13-14, 39 Stat. 952, repealed, Act of July 3, 1950, § 5(1), 64 Stat. 320 (effective July 25, 1952). When Congress authorized the people of Puerto Rico to adopt a constitution, its only express substantive requirements were that the document should provide for a republican form of government and "include a bill of rights." Act of July 3, 1950, § 2, 64 Stat. 319, 48 U.S.C. § 731c. A constitution containing the language of the Fourth Amendment, as well as additional language reflecting this Court's exegesis thereof, P.R.Const., Art. II, § 10, was adopted by the people of Puerto Rico and approved by Congress. See Act of July 3, 1952, 66 Stat. 327. That constitutional provision remains in effect. Page 442 U. S. 471We conclude that the constitutional requirements of the Fourth Amendment apply to the Commonwealth. [Footnote 3] As in Examining Board v. Flores de Otero, supra at 435 U. S. 601, we have no occasion to determine whether the Fourth Amendment applies to Puerto Rico directly or by operation of the Fourteenth Amendment.IIIThe search of appellant's baggage pursuant to Public Law 22 did not satisfy the requirements of the Fourth Amendment as we heretofore have construed it. First, the grounds for a search must satisfy objective standards which ensure that the invasion of personal privacy is justified by legitimate governmental interests. Delaware v. Prouse, 440 U. S. 648, 440 U. S. 653-655 (1979). The governmental interests to be served in the detection or prevention of crime are subject to traditional standards of probable cause to believe that incriminating evidence will be found. Yet Public Law 22 does not require, and the officers who made the search challenged here did not have, probable cause for such belief.Second, a warrant is normally a prerequisite to a search unless exigent circumstances make compliance with this requirement impossible. Mincey v. Arizona, 437 U. S. 385, 437 U. S. 393-394 (1978). Yet Public Law 22 requires no warrant, and none was obtained before appellant's bags were searched. [Footnote 4] Page 442 U. S. 472IVApparently recognizing that the search of appellant's luggage pursuant to Public Law 22 cannot be sustained under our previous decisions, Puerto Rico urges us not to be bound in "the conceptual prison of stare decisis." It suggests a novel exception to the normal Fourth Amendment requirements of a warrant and probable cause, referring us to decisions of this and other courts which have sustained (a) searches by the Border Patrol at a "functional equivalent" of the international border of the United States, (b) state inspections of shipments of goods in furtherance of health and safety regulations, (c) the use of airport metal detectors, and (d) certain searches on military bases. The Commonwealth asserts that these decisions recognize a variety of "intermediate borders," analogous to the international border of the United States, at which searches are permitted even though normal Fourth Amendment requirements are not satisfied.Puerto Rico then asks us to recognize an "intermediate border" between the Commonwealth and the rest of the United States. In support of this proposal, it points to its unique political status, and to the fact that its borders as an island are, in fact, international borders with respect to all countries except the United States. Finally, Puerto Rico urges that, because of the seriousness of the problems created by an influx of weapons and narcotics, it should have the same freedom to search persons crossing its "intermediate border" as does the United States with respect to incoming international travelers.The decisions on which Puerto Rico seeks to erect its theory of "intermediate boundaries" do not reflect any geographical element of Fourth Amendment doctrine, however, but are based on a variety of considerations which have no bearing on this case. Public Law 22 cannot be justified by any analogy to customs searches at a functional equivalent of the international border of the United States. The authority of the Page 442 U. S. 473 United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry. United States v. Ramsey, 431 U. S. 606, 431 U. S. 620 (1977); Almeida-Sanchez v. United States, 413 U. S. 266, 413 U. S. 272 (1973); Carroll v. United States, 267 U. S. 132, 267 U. S. 154 (1925). Puerto Rico has no sovereign authority to prohibit entry into its territory; as with all international ports of entry, border and customs control for Puerto Rico is conducted by federal officers. Congress has provided by statute that Puerto Rico must accord to all citizens of the United States the privileges and immunities of its own residents. Act of Aug. 5, 1947, § 7, 61 Stat. 772, 48 U.S.C. § 737. See Mullaney v. Anderson, 342 U.S. at 342 U. S. 419, n.2.Public Law 22 also may not be sustained by analogy to state inspection provisions designed to implement health and safety legislation. By a vote of four to three, the Puerto Rico Supreme Court rejected appellee's attempt to characterize Public Law 22 as a health and safety measure, finding instead that it was enacted for the purpose of enforcing criminal laws. In any event, health and safety inspections are subject to the Fourth Amendment warrant requirement unless they fall within one of its recognized exceptions, and must be based on a "plan containing specific neutral criteria." Marshall v. Barlow's, Inc., 436 U. S. 307, 436 U. S. 312, 323 (1978). [Footnote 5]Puerto Rico's position boils down to a contention that its law enforcement problems are so pressing that it should be granted an exemption from the usual requirements of the Fourth Amendment. Although we have recognized exceptions Page 442 U. S. 474 to the warrant requirement when specific circumstances render compliance impracticable, we have not dispensed with the fundamental Fourth Amendment prohibition against unreasonable searches and seizures simply because of a generalized urgency of law enforcement. Almeida-Sanchez v. United States, supra, at 413 U. S. 273-275; United States v. Di Re, 332 U. S. 581, 332 U. S. 595 (1948).In any event, Puerto Rico's law enforcement needs are indistinguishable from those of many states. Puerto Rico is not unique because it is an island; like Puerto Rico, neither Alaska nor Hawaii are contiguous to the continental body of the United States. Moreover, the majority of all the states have borders which coincide in part with the international frontier of the United States; virtually all have international airport facilities subject to federal customs controls.We therefore hold that the search pursuant to Public Law 22 violated constitutional guarantees; accordingly, evidence obtained in the search of appellant's luggage should have been suppressed. The judgment of the Supreme Court of Puerto Rico is therefore reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtTorres v. Puerto Rico, 442 U.S. 465 (1979)Torres v. Puerto RicoNo. 77-1609Argued January 10, 1979Decided June 18, 1979442 U.S. 465SyllabusWhen appellant arrived at the airport in San Juan, Puerto Rico, police officers, without a warrant or probable cause to suspect that appellant was carrying contraband, searched his baggage pursuant to a Puerto Rico statute authorizing the police to search the luggage of any person arriving in Puerto Rico from the United States. The search revealed marihuana, and appellant was subsequently charged with and convicted of a drug violation under Puerto Rico law. On appeal, he contended that the search violated the federal constitutional prohibition against unreasonable searches; the Puerto Rico Supreme Court affirmed the conviction.Held:1. The constitutional requirements of the Fourth Amendment apply to Puerto Rico. Both Congress' implicit determinations that the Amendment practically and beneficially may be implemented in Puerto Rico and long experience establish that the Amendment's restrictions on searches and seizures may be applied to Puerto Rico without danger to national interests or risk of unfairness. From 1917 to 1952, Congress by statute afforded equivalent personal rights to Puerto Rico residents, and the Puerto Rico Constitution, which was adopted pursuant to Congress' authority and approved by Congress in 1952, contains the Fourth Amendment's language as well as language reflecting this Court's exegesis of the Amendment. Pp. 442 U. S. 468-471.2. The search of appellant's baggage pursuant to statute did not satisfy the requirements of the Fourth Amendment that there be probable cause to believe that incriminating evidence will be found and that there be a warrant unless exigent circumstances make compliance with this requirement impossible. P. 442 U. S. 471.3. The requirements of a warrant and probable cause are not subject to any exception that applies generally to persons arriving in Puerto Rico from the United States. The statute in question cannot be justified by any analogy to customs searches at a functional equivalent of the international border of the United States; Puerto Rico has no sovereign authority to control entry into its territory. Nor can the statute be sustained by analogy to state inspection provisions designed to implement health and safety legislation, the statute having been construed by the Puerto Rico Supreme Court as one enacted for the purpose of Page 442 U. S. 466 enforcing criminal laws; moreover, health and safety inspections are generally subject to the Fourth Amendment warrant requirement. Pp. 442 U. S. 472-474.Reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which STEWART, MARSHALL, and BLACKMUN, JJ., joined, post, p. 442 U. S. 474.

1991_91-372

Robert H. Revell, Jr., argued the cause for respondents.With him on the brief was Jesse W Walters. *JUSTICE BLACKMUN delivered the opinion of the Court. For more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause. See, e. g., Strauder v. West Virginia, 100 U. S. 303 (1880). Last Term this Court held that racial discrimination in a civil litigant's exercise of peremptory challenges also violates the Equal Protection Clause. See Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991). Today, we are asked to decide whether the Constitution prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges.IOn August 10, 1990, a grand jury sitting in Dougherty County, Ga., returned a six-count indictment charging respondents with aggravated assault and simple battery. See App. 2. The indictment alleged that respondents beat and assaulted Jerry and Myra Collins. Respondents are white; the alleged victims are African-Americans. Shortly after the events, a leaflet was widely distributed in the local African-American community reporting the assault and urging community residents not to patronize respondents' business.Before jury selection began, the prosecution moved to prohibit respondents from exercising peremptory challenges in*Briefs of amici curiae urging reversal were filed for the Criminal Justice Legal Foundation by Kent Scheidegger and Charles L. Hobson; and for the NAACP Legal Defense and Educational Fund, Inc., by Julius L. Chambers, Charles Stephen Ralston, and Eric Schnapper.Briefs of amici curiae were filed for the National Association of Criminal Defense Lawyers by Judy Clarke and Mario G. Conte; and for Charles J. Hynes, pro se, by Jay M. Cohen, Matthew S. Greenberg, Victor Barall, and Carol Teague Schwartzkopf45a racially discriminatory manner. The State explained that it expected to show that the victims' race was a factor in the alleged assault. According to the State, counsel for respondents had indicated a clear intention to use peremptory strikes in a racially discriminatory manner, arguing that the circumstances of their case gave them the right to exclude African-American citizens from participating as jurors in the trial. Observing that 43 percent of the county's population is African-American, the State contended that, if a statistically representative panel is assembled for jury selection, 18 of the potential 42 jurors would be African-American.1 With 20 peremptory challenges, respondents therefore would be able to remove all the African-American potential jurors.2 Relying on Batson v. Kentucky, 476 U. S. 79 (1986), the Sixth Amendment, and the Georgia Constitution, the State sought an order providing that, if it succeeded in making out a prima facie case of racial discrimination by respondents, the latter would be required to articulate a racially neutral explanation for peremptory challenges.The trial judge denied the State's motion, holding that "[n]either Georgia nor federal law prohibits criminal defendants from exercising peremptory strikes in a racially discriminatory manner." App.14. The issue was certified for immediate appeal. Id., at 15 and 18.The Supreme Court of Georgia, by a 4-to-3 vote, affirmed the trial court's ruling. 261 Ga. 473, 405 S. E. 2d 688 (1991). The court acknowledged that in Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991), this Court had found that the exercise of a peremptory challenge in a racially discriminatory manner "would constitute an impermissible injury" to the excluded juror. 261 Ga., at 473, 405 S. E. 2d, at 689.1 Under Georgia law, the petit jury in a felony trial is selected from a panel of 42 persons. Ga. Code Ann. § 15-12-160 (1990).2 When a defendant is indicted for an offense carrying a penalty of four or more years, Georgia law provides that he may "peremptorily challenge 20 of the jurors impaneled to try him." § 15-12-165.46The court noted, however, that Edmonson involved private civil litigants, not criminal defendants. "Bearing in mind the long history of jury trials as an essential element of the protection of human rights," the court "decline[d] to diminish the free exercise of peremptory strikes by a criminal defendant." 261 Ga., at 473, 405 S. E. 2d, at 689. Three justices dissented, arguing that Edmonson and other decisions of this Court establish that racially based peremptory challenges by a criminal defendant violate the Constitution. 261 Ga., at 473, 405 S. E. 2d, at 689 (Hunt, J.); id., at 475, 405 S. E. 2d, at 690 (Benham, J.); id., at 479, 405 S. E. 2d, at 693 (Fletcher, J.). A motion for reconsideration was denied. App.60.We granted certiorari to resolve a question left open by our prior cases-whether the Constitution prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges.3 502 U. S. 937 (1991).IIOver the last century, in an almost unbroken chain of decisions, this Court gradually has abolished race as a consideration for jury service. In Strauder v. West Virginia, 100 U. S. 303 (1880), the Court invalidated a state statute providing that only white men could serve as jurors. While stating that a defendant has no right to a "petit jury composed in whole or in part of persons of his own race," id., at 305, the Court held that a defendant does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria. See also Neal v. Delaware, 103 U. S. 370,3 The Ninth Circuit recently has prohibited criminal defendants from exercising peremptory challenges on the basis of gender. United States v. De Gross, 960 F.2d 1433 (1992) (en bane). Although the panel decision now has been vacated by the granting of rehearing en bane, a Fifth Circuit panel has held that criminal defendants may not exercise peremptory strikes in a racially discriminatory manner. See United States v. Greer, 939 F.2d 1076, rehearing granted, 948 F.2d 934 (1991).47397 (1881); Norris v. Alabama, 294 U. S. 587, 599 (1935) (State cannot exclude African-Americans from jury venire on false assumption that they, as a group, are not qualified to serve as jurors).In Swain v. Alabama, 380 U. S. 202 (1965), the Court was confronted with the question whether an African-American defendant was denied equal protection by the State's exercise of peremptory challenges to exclude members of his race from the petit jury. Id., at 209-210. Although the Court rejected the defendant's attempt to establish an equal protection claim premised solely on the pattern of jury strikes in his own case, it acknowledged that proof of systematic exclusion of African-Americans through the use of peremptories over a period of time might establish such a violation. Id., at 224-228.In Batson v. Kentucky, 476 U. S. 79 (1986), the Court discarded Swain's evidentiary formulation. The Batson Court held that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury based solely on the prosecutor's exercise of peremptory challenges at the defendant's trial. Id., at 87. "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Id., at 97.4Last Term this Court applied the Batson framework in two other contexts. In Powers v. Ohio, 499 U. S. 400 (1991), it held that in the trial of a white criminal defendant, a prosecutor is prohibited from excluding African-American jurors4 The Batson majority specifically reserved the issue before us today. 476 U. S., at 89, n. 12. The two Batson dissenters, however, argued that the "clear and inescapable import" was that Batson would similarly limit defendants. Id., at 125-126. Justice Marshall agreed, stating: "[O]ur criminal justice system 'requires not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.' Hayes v. Missouri, 120 U. S. 68, 70 (1887)." Id., at 107 (concurring opinion).48on the basis of race. In Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991), the Court decided that in a civil case, private litigants cannot exercise their peremptory strikes in a racially discriminatory manner.5In deciding whether the Constitution prohibits criminal defendants from exercising racially discriminatory peremptory challenges, we must answer four questions. First, whether a criminal defendant's exercise of peremptory challenges in a racially discriminatory manner inflicts the harms addressed by Batson. Second, whether the exercise of peremptory challenges by a criminal defendant constitutes state action. Third, whether prosecutors have standing to raise this constitutional challenge. And fourth, whether the constitutional rights of a criminal defendant nonetheless preclude the extension of our precedents to this case.III AThe majority in Powers recognized that "Batson 'was designed "to serve multiple ends,'" only one of which was to protect individual defendants from discrimination in the selection of jurors." 499 U. S., at 406. As in Powers and Edmonson, the extension of Batson in this context is designed to remedy the harm done to the "dignity of persons" and to the "integrity of the courts." Powers, 499 U. S., at 402.As long ago as Strauder, this Court recognized that denying a person participation in jury service on account of his race unconstitutionally discriminates against the excluded juror. 100 U. S., at 308. See also Batson, 476 U. S., at 87. While "[a]n individual juror does not have a right to sit on any particular petit jury, ... he or she does possess the right not to be excluded from one on account of race." Powers,5 In his dissent in Edmonson, JUSTICE SCALIA stated that the effect of that decision logically must apply to defendants in criminal prosecutions. 500 U. S., at 644.49499 U. S., at 409. Regardless of who invokes the discriminatory challenge, there can be no doubt that the harm is the same-in all cases, the juror is subjected to open and public racial discrimination.But "[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community." Batson, 476 U. S., at 87. One of the goals of our jury system is "to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair." Powers, 499 U. S., at 413. Selection procedures that purposefully exclude AfricanAmericans from juries undermine that public confidence-as well they should. "The overt wrong, often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause." Id., at 412. See generally Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?, 92 Colum. L. Rev. 725, 748-750 (1992).The need for public confidence is especially high in cases involving race-related crimes. In such cases, emotions in the affected community will inevitably be heated and volatile. Public confidence in the integrity of the criminal justice system is essential for preserving community peace in trials involving race-related crimes. See Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 195-196 (1989) (describing two trials in Miami, Fla., in which all African-American jurors were peremptorily struck by white defendants accused of racial beating, and the public outrage and riots that followed the defendants' acquittal)."[B]e it at the hands of the State or the defense," if a court allows jurors to be excluded because of group bias, "[it] is [a] willing participant in a scheme that could only undermine the very foundation of our system of justice-our citizens'50confidence in it." State v. Alvarado, 221 N. J. Super. 324, 328, 534 A. 2d 440, 442 (1987). Just as public confidence in criminal justice is undermined by a conviction in a trial where racial discrimination has occurred in jury selection, so is public confidence undermined where a defendant, assisted by racially discriminatory peremptory strikes, obtains an acquitta1.6BThe fact that a defendant's use of discriminatory peremptory challenges harms the jurors and the community does not end our equal protection inquiry. Racial discrimination, although repugnant in all contexts, violates the Constitution only when it is attributable to state action. See Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 172 (1972). Thus, the second question that must be answered is whether a criminal defendant's exercise of a peremptory challenge constitutes state action for purposes of the Equal Protection Clause.Until Edmonson, the cases decided by this Court that presented the problem of racially discriminatory peremptory challenges involved assertions of discrimination by a prosecutor, a quintessential state actor. In Edmonson, by contrast, the contested peremptory challenges were exercised by a private defendant in a civil action. In order to determine whether state action was present in that setting, the6 The experience of many state jurisdictions has led to the recognition that a race-based peremptory challenge, regardless of who exercises it, harms not only the challenged juror, but the entire community. Acting pursuant to their state constitutions, state courts have ruled that criminal defendants have no greater license to violate the equal protection rights of prospective jurors than have prosecutors. See, e. g., State v. Levinson, 71 Haw. 492, 795 P. 2d 845 (1990); People v. Kern, 149 App. Div. 2d 187, 545 N. Y. S. 2d 4 (1989), aff'd, 75 N. Y. 2d 638, 555 N. Y. S. 2d 647 (1990); State v. Alvarado, 221 N. J. Super. 324, 534 A. 2d 440 (1987); State v. Neil, 457 So. 2d 481 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 461, 387 N. E. 2d 499, cert. denied, 444 U. S. 881 (1979); People v. Wheeler, 22 Cal. 3d 258,583 P. 2d 748 (1978).51Court in Edmonson used the analytical framework summarized in Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982).7The first inquiry is "whether the claimed [constitutional] deprivation has resulted from the exercise of a right or privilege having its source in state authority." Id., at 939. "There can be no question" that peremptory challenges satisfy this first requirement, as they "are permitted only when the government, by statute or decisional law, deems it appropriate to allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury." Edmonson, 500 U. S., at 620. As in Edmonson, a Georgia defendant's right to exercise peremptory challenges and the scope of that right are established by a provision of state law. Ga. Code Ann. § 15-12-165 (1990).The second inquiry is whether the private party charged with the deprivation can be described as a state actor. See Lugar, 457 U. S., at 941-942. In resolving that issue, the Court in Edmonson found it useful to apply three principles: (1) "the extent to which the actor relies on governmental assistance and benefits"; (2) "whether the actor is performing a traditional governmental function"; and (3) "whether the injury caused is aggravated in a unique way by the incidents of governmental authority." 500 U. S., at 621-622.As to the first principle, the Edmonson Court found that the peremptory challenge system, as well as the jury system as a whole, "simply could not exist" without the "overt, significant participation of the government." Id., at 622. Georgia provides for the compilation of jury lists by the board of jury commissioners in each county and establishes the general criteria for service and the sources for creating a pool of qualified jurors representing a fair cross section of the community. Ga. Code Ann. § 15-12-40. State law fur-7 The Court in Lugar held that a private litigant is appropriately characterized as a state actor when he "jointly participates" with state officials in securing the seizure of property in which the private party claims to have rights. 457 U. S., at 932-933, 941-942.52ther provides that jurors are to be selected by a specified process, § 15-12-42; they are to be summoned to court under the authority of the State, § 15-12-120; and they are to be paid an expense allowance by the State whether or not they serve on a jury, § 15-12-9. At court, potential jurors are placed in panels in order to facilitate examination by counsel, § 15-12-131; they are administered an oath, § 15-12-132; they are questioned on voir dire to determine whether they are impartial, § 15-12-164; and they are subject to challenge for cause, § 15-12-163.In light of these procedures, the defendant in a Georgia criminal case relies on "governmental assistance and benefits" that are equivalent to those found in the civil context in Edmonson. "By enforcing a discriminatory peremptory challenge, the Court 'has ... elected to place its power, property and prestige behind the [alleged] discrimination.'" Edmonson, 500 U. S., at 624 (citation omitted).In regard to the second principle, the Court in Edmonson found that peremptory challenges perform a traditional function of the government: "Their sole purpose is to permit litigants to assist the government in the selection of an impartial trier of fact." Id., at 620. And, as the Edmonson Court recognized, the jury system in turn "performs the critical governmental functions of guarding the rights of litigants and 'ensur[ing] continued acceptance of the laws by all of the people'" Id., at 624 (citation omitted). These same conclusions apply with even greater force in the criminal context because the selection of a jury in a criminal case fulfills a unique and constitutionally compelled governmental function. Compare Duncan v. Louisiana, 391 U. S. 145 (1968) (making Sixth Amendment applicable to States through Fourteenth Amendment), with Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211 (1916) (States do not have a constitutional obligation to provide a jury trial in civil cases). Cf. West v. Atkins, 487 U. S. 42, 53, n. 10, 57 (1988) (private53physician hired by State to provide medical care to prisoners was state actor because doctor was hired to fulfill State's constitutional obligation to attend to necessary medical care of prison inmates). The State cannot avoid its constitutional responsibilities by delegating a public function to private parties. Cf. Terry v. Adams, 345 U. S. 461 (1953) (private political party's determination of qualifications for primary voters held to constitute state action).Finally, the Edmonson Court indicated that the courtroom setting in which the peremptory challenge is exercised intensifies the harmful effects of the private litigant's discriminatory act and contributes to its characterization as state action. These concerns are equally present in the context of a criminal trial. Regardless of who precipitated the jurors' removal, the perception and the reality in a criminal trial will be that the court has excused jurors based on race, an outcome that will be attributed to the State.8Respondents nonetheless contend that the adversarial relationship between the defendant and the prosecution negates the governmental character of the peremptory challenge. Respondents rely on Polk County v. Dodson, 454 U. S. 312 (1981), in which a defendant sued, under 42 U. S. C. § 1983, the public defender who represented him. The defendant claimed that the public defender had violated his constitutional rights in failing to provide adequate representation. This Court determined that a public defender does not qualify as a state actor when engaged in his general representation of a criminal defendant.98 Indeed, it is common practice not to reveal the identity of the challenging party to the jurors and potential jurors, thus enhancing the perception that it is the court that has rejected them. See Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?, 92 Colum. L. Rev. 725, 751, n. 117 (1992).9 Although Polk County determined whether or not the public defender's actions were under color of state law, as opposed to whether or not they constituted state action, this Court subsequently has held that the54Polk County did not hold that the adversarial relationship of a public defender with the State precludes a finding of state action-it held that this adversarial relationship prevented the attorney's public employment from alone being sufficient to support a finding of state action. Instead, the determination whether a public defender is a state actor for a particular purpose depends on the nature and context of the function he is performing. For example, in Branti v. Finkel, 445 U. S. 507 (1980), this Court held that a public defender, in making personnel decisions on behalf of the State, is a state actor who must comply with constitutional requirements. And the Polk County Court itself noted, without deciding, that a public defender may act under color of state law while performing certain administrative, and possibly investigative, functions. See 454 U. S., at 325.The exercise of a peremptory challenge differs significantly from other actions taken in support of a defendant's defense. In exercising a peremptory challenge, a criminal defendant is wielding the power to choose a quintessential governmental body-indeed, the institution of government on which our judicial system depends. Thus, as we held in Edmonson, when "a government confers on a private body the power to choose the government's employees or officials, the private body will be bound by the constitutional mandate of race neutrality." 500 U. S., at 625.Lastly, the fact that a defendant exercises a peremptory challenge to further his interest in acquittal does not conflict with a finding of state action. Whenever a private actor's conduct is deemed "fairly attributable" to the government, it is likely that private motives will have animated the actor's decision. Indeed, in Edmonson, the Court recognized that the private party's exercise of peremptory challenges consti-two inquiries are the same, see, e. g., Rendell-Baker v. Kohn, 457 U. S. 830, 838 (1982), and has specifically extended Polk County's reasoning to stateaction cases, see Blum v. Yaretsky, 457 U. S. 991, 1009, n. 20 (1982).55tuted state action, even though the motive underlying the exercise of the peremptory challenge may be to protect a private interest. See id., at 626.10CHaving held that a defendant's discriminatory exercise of a peremptory challenge is a violation of equal protection, we move to the question whether the State has standing to challenge a defendant's discriminatory use of peremptory challenges. In Powers, 499 U. S., at 416, this Court held that a white criminal defendant has standing to raise the equal protection rights of black jurors wrongfully excluded from jury service. While third-party standing is a limited exception, the Powers Court recognized that a litigant may raise a claim on behalf of a third party if the litigant can demonstrate that he has suffered a concrete injury, that he has a close relation to the third party, and that there exists some hindrance to the third party's ability to protect its own interests. Id., at 411. In Edmonson, the Court applied the same analysis in deciding that civil litigants had standing to raise the equal protection rights of jurors excluded on the basis of their race.In applying the first prong of its standing analysis, the Powers Court found that a criminal defendant suffered cog-10 Numerous commentators similarly have concluded that a defendant's exercise of peremptory challenges constitutes state action. See generally Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 197-198 (1989); Note, State Action and the Peremptory Challenge: Evolution of the Court's Treatment and Implications for Georgia v. McCollum, 67 Notre Dame L. Rev. 1049, 1061-1074 (1992); Note, Discrimination by the Defense:Peremptory Challeges after Batson v. Kentucky, 88 Colum. L. Rev. 355, 358-361 (1988); Comment, The Prosecutor's Right to Object to a Defendant's Abuse of Peremptory Challenges, 93 Dick. L. Rev. 143, 158-162 (1988); Tanford, Racism in the Adversary System: The Defendant's Use of Peremptory Challenges, 63 S. Cal. L. Rev. 1015, 1027-1030 (1990); Underwood, 92 Colum. L. Rev., at 750-753.56nizable injury "because racial discrimination in the selection of jurors 'casts doubt on the integrity of the judicial process,' and places the fairness of a criminal proceeding in doubt." 499 U. S., at 411 (citation omitted). In Edmonson, this Court found that these harms were not limited to the criminal sphere. 500 U. S., at 630. Surely, a State suffers a similar injury when the fairness and integrity of its own judicial process is undermined.In applying the second prong of its standing analysis, the Powers Court held that voir dire permits a defendant to "establish a relation, if not a bond of trust, with the jurors," a relation that "continues throughout the entire trial." 499 U. S., at 413. "Exclusion of a juror on the basis of race severs that relation in an invidious way." Edmonson, 500 U. S., at 629.The State's relation to potential jurors in this case is closer than the relationships approved in Powers and Edmonson. As the representative of all its citizens, the State is the logical and proper party to assert the invasion of the constitutional rights of the excluded jurors in a criminal trial. Indeed, the Fourteenth Amendment forbids the State to deny persons within its jurisdiction the equal protection of the laws.In applying the final prong of its standing analysis, the Powers Court recognized that, although individuals excluded from jury service on the basis of race have a right to bring suit on their own behalf, the "barriers to a suit by an excluded juror are daunting." 499 U. S., at 414. See also Edmonson, 500 U. S., at 629. The barriers are no less formidable in this context. See Note, Discrimination by the Defense: Peremptory Challenges after Batson v. Kentucky, 88 Colum. L. Rev. 355, 367 (1988); Underwood, 92 Colum. L. Rev., at 757 (summarizing barriers to suit by excluded juror). Accordingly, we hold that the State has standing to assert the excluded jurors' rights.57DThe final question is whether the interests served by Batson must give way to the rights of a criminal defendant. As a preliminary matter, it is important to recall that peremptory challenges are not constitutionally protected fundamental rights; rather, they are but one state-created means to the constitutional end of an impartial jury and a fair trial. This Court repeatedly has stated that the right to a peremptory challenge may be withheld altogether without impairing the constitutional guarantee of an impartial jury and a fair trial. See Frazier v. United States, 335 U. S. 497, 505, n. 11 (1948); United States v. Wood, 299 U. S. 123, 145 (1936); Stilson v. United States, 250 U. S. 583, 586 (1919); see also Swain, 380 U. S., at 219.Yet in Swain, the Court reviewed the "very old credentials," id., at 212, of the peremptory challenge and noted the "long and widely held belief that the peremptory challenge is a necessary part of trial by jury," id., at 219; see id., at 212-219. This Court likewise has recognized that "the role of litigants in determining the jury's composition provides one reason for wide acceptance of the jury system and of its verdicts." Edmonson, 500 U. S., at 630.We do not believe that this decision will undermine the contribution of the peremptory challenge to the administration of justice. Nonetheless, "if race stereotypes are the price for acceptance of a jury panel as fair," we reaffirm today that such a "price is too high to meet the standard of the Constitution." Id., at 630. Defense counsel is limited to "legitimate, lawful conduct." Nix v. Whiteside, 475 U. S. 157, 166 (1986) (defense counsel does not render ineffective assistance when he informs his client that he would disclose the client's perjury to the court and move to withdraw from representation). It is an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens based upon their race.58Nor does a prohibition of the exercise of discriminatory peremptory challenges violate a defendant's Sixth Amendment right to the effective assistance of counsel. Counsel can ordinarily explain the reasons for peremptory challenges without revealing anything about trial strategy or any confidential client communications. In the rare case in which the explanation for a challenge would entail confidential communications or reveal trial strategy, an in camera discussion can be arranged. See United States v. Zolin, 491 U. S. 554 (1989); cf. Batson, 476 U. S., at 97 (expressing confidence that trial judges can develop procedures to implement the Court's holding). In any event, neither the Sixth Amendment right nor the attorney-client privilege gives a criminal defendant the right to carry out through counsel an unlawful course of conduct. See Nix, 475 U. S., at 166; Zolin, 491 U. S., at 562563. See Swift, Defendants, Racism and the Peremptory Challenge, 22 Colum. Hum. Rights L. Rev. 177, 207-208 (1991).Lastly, a prohibition of the discriminatory exercise of peremptory challenges does not violate a defendant's Sixth Amendment right to a trial by an impartial jury. The goal of the Sixth Amendment is "jury impartiality with respect to both contestants." Holland v. Illinois, 493 U. S. 474, 483 (1990). See also Hayes v. Missouri, 120 U. S. 68 (1887).We recognize, of course, that a defendant has the right to an impartial jury that can view him without racial animus, which so long has distorted our system of criminal justice. We have, accordingly, held that there should be a mechanism for removing those on the venire whom the defendant has specific reason to believe would be incapable of confronting and suppressing their racism. See Ham v. South Carolina, 409 U. S. 524, 526-527 (1973); Rosales-Lopez v. United States, 451 U. S. 182, 189-190 (1981) (plurality opinion of WHITE, J.). Cf. Morgan v. Illinois, 504 U. S. 719 (1992) (exclusion of juror in capital trial is permissible upon showing that juror is incapable of considering sentences other than death).59But there is a distinction between exercising a peremptory challenge to discriminate invidiously against jurors on account of race and exercising a peremptory challenge to remove an individual juror who harbors racial prejudice. This Court firmly has rejected the view that assumptions of partiality based on race provide a legitimate basis for disqualifying a person as an impartial juror. As this Court stated just last Term in Powers, "[w]e may not accept as a defense to racial discrimination the very stereotype the law condemns." 499 U. S., at 410. "In our heterogeneous society policy as well as constitutional considerations militate against the divisive assumption-as a per se rule-that justice in a court of law may turn upon the pigmentation of skin, the accident of birth, or the choice of religion." Ristaino v. Ross, 424 U. S. 589, 596, n. 8 (1976). We therefore reaffirm today that the exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereotypes held by the party.IVWe hold that the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges. Accordingly, if the State demonstrates a prima facie case of racial discrimination by the defendants, the defendants must articulate a racially neutral explanation for peremptory challenges. The judgment of the Supreme Court of Georgia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusGEORGIA v. McCOLLUM ET AL.CERTIORARI TO THE SUPREME COURT OF GEORGIA No. 91-372. Argued February 26, 1992-Decided June 18, 1992Respondents, who are white, were charged with assaulting two MricanAmericans. Before jury selection began, the trial judge denied the prosecution's motion to prohibit respondents from exercising peremptory challenges in a racially discriminatory manner. The Georgia Supreme Court affirmed, distinguishing Edmonson v. Leesville Concrete Co., 500 U. S. 614-in which this Court held that private litigants cannot exercise peremptory strikes in a racially discriminatory manner-on the ground that it involved civil litigants rather than criminal defendants.Held: The Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges. Pp.46-59.(a) The exercise of racially discriminatory peremptory challenges offends the Equal Protection Clause when the offending challenges are made by the State, Batson v. Kentucky, 476 U. S. 79; Powers v. Ohio, 499 U. S. 400, and, in civil cases, when they are made by private litigants, Edmonson, supra. Whether the prohibition should be extended to discriminatory challenges made by a criminal defendant turns upon the following four-factor analysis. Pp.46-48.(b) A criminal defendant's racially discriminatory exercise of peremptory challenges inflicts the harms addressed by Batson. Regardless of whether it is the State or the defense who invokes them, discriminatory challenges harm the individual juror by subjecting him to open and public racial discrimination and harm the community by undermining public confidence in this country's system of justice. Pp. 48-50.(c) A criminal defendant's exercise of peremptory challenges constitutes state action for purposes of the Equal Protection Clause under the analytical framework summarized in Lugar v. Edmondson Oil Co., 457 U. S. 922. Respondents' argument that the adversarial relationship between the defendant and the prosecution negates a peremptory challenge's governmental character is rejected. Unlike other actions taken in support of a defendant's defense, the exercise of a peremptory challenge determines the composition of a governmental body. The fact that a defendant exercises a peremptory challenge to further his interest in acquittal does not conflict with a finding of state action, since43whenever a private actor's conduct is deemed fairly attributable to the government, it is likely that private motives will have animated the actor's decision. Pp. 50-55.(d) The State has third-party standing to challenge a defendant's discriminatory use of peremptory challenges, since it suffers a concrete injury when the fairness and the integrity of its own judicial process is undermined; since, as the representative of all its citizens, it has a close relation to potential jurors; and since the barriers to suit by an excluded juror are daunting. See Powers, 499 U. S., at 411, 413, 414. Pp. 55-56.(e) A prohibition against the discriminatory exercise of peremptory challenges does not violate a criminal defendant's constitutional rights. It is an affront to justice to argue that the right to a fair trial includes the right to discriminate against a group of citizens based upon their race. Nor does the prohibition violate the Sixth Amendment right to the effective assistance of counsel, since counsel can normally explain the reasons for peremptory challenges without revealing strategy or confidential communication, and since neither the Sixth Amendment nor the attorney-client privilege gives a defendant the right to carry out through counsel an unlawful course of conduct. In addition, the prohibition does not violate the Sixth Amendment right to a trial by a jury that is impartial with respect to both parties. Removing a juror whom the defendant believes harbors racial prejudice is different from exercising a peremptory challenge to discriminate invidiously against jurors on account of race. Pp. 57-59.261 Ga. 473, 405 S. E. 2d 688, reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, KENNEDY, and SOUTER, JJ., joined. REHNQUIST, C. J., filed a concurring opinion, post, p. 59. THOMAS, J., filed an opinion concurring in the judgment, post, p. 60. O'CONNOR, J., post, p. 62, and SCALIA, J., post, p. 69, filed dissenting opinions.Harrison W Kohler, Senior Assistant Attorney General of Georgia, argued the cause for petitioner. With him on the briefs were Michael J. Bowers, Attorney General, and Charles M. Richards, Senior Assistant Attorney General.Michael R. Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson.44Full Text of Opinion

1986_86-243

JUSTICE BRENNAN delivered the opinion of the Court.This case presents the question whether a municipal ordinance that makes it unlawful to interrupt a police officer in the performance of his or her duties is unconstitutionally overbroad under the First Amendment.IAppellee Raymond Wayne Hill is a lifelong resident of Houston, Texas. At the time this lawsuit began, he worked as a paralegal and as executive director of the Houston Human Rights League. A member of the board of the Gay Political Caucus, which he helped found in 1975, Hill was also affiliated with a Houston radio station, and had carried city and county press passes since 1975. He lived in Montrose, a "diverse and eclectic neighborhood" that is the center of gay political and social life in Houston. App. 26-27.The incident that sparked this lawsuit occurred in the Montrose area on February 14, 1982. Hill observed a friend, Charles Hill, intentionally stopping traffic on a busy street, evidently to enable a vehicle to enter traffic. Two Houston police officers, one of whom was named Kelley, approached Charles and began speaking with him. According to the District Court, "shortly thereafter," Hill began shouting at the officers "in an admitted attempt to divert Kelley's attention from Charles Hill." App. to Juris. Statement B-2. [Footnote 1] Hill Page 482 U. S. 454 first shouted: "Why don't you pick on somebody your own size?" After Officer Kelley responded: "[A]re you interrupting me in my official capacity as a Houston police officer?" Hill then shouted: "Yes, why don't you pick on somebody my size?" App. 40-41, 58, 71-74. Hill was arrested under Houston Code of Ordinances, § 34-11(a), for "willfully or intentionally interrupt[ing] a city policeman . . . by verbal challenge during an investigation." App. 2. Charles Hill was not arrested. Hill was then acquitted after a nonjury trial in Municipal Court. [Footnote 2] Page 482 U. S. 455Code of Ordinances, City of Houston, Texas, § 34-11(a) (1984), reads:"Sec. 34-11. Assaulting or interfering with policemen.""(a) It shall be unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest. [Footnote 3]"Following his acquittal in the Charles Hill incident, Hill brought the suit in the Federal District Court for the Southern District of Texas, seeking (1) a declaratory judgment that § 34-11(a) was unconstitutional both on its face and as it had been applied to him, (2) a permanent injunction against any attempt to enforce the ordinance, (3) an order expunging the records of his arrests under the ordinance, and (4) damages and attorney's fees under 42 U.S.C. §§ 1983 and 1988.At trial, Hill introduced records provided by the city regarding both the frequency with which arrests had been made for violation of the ordinance and the type of conduct with which those arrested had been charged. He also introduced evidence and testimony concerning the arrests of several reporters under the ordinance. Finally, Hill introduced evidence regarding his own experience with the ordinance, under which he has been arrested four times since 1975, but never convicted.The District Court held that Hill's evidence did not demonstrate that the ordinance had been unconstitutionally applied. [Footnote 4] The court also rejected Hill's contention that the Page 482 U. S. 456 ordinance was unconstitutionally vague or overbroad on its face. The ordinance was not vague, the court stated, because:"[t]he wording of the ordinance is sufficiently definite to put a person of reasonable intelligence on fair notice of what actions are forbidden. In particular, the Court finds that the use of words such as 'interrupt' are sufficiently clear by virtue of their commonly understood, everyday definitions. 'Interrupt' commonly means to cause one to cease, such as stopping someone in the middle of something. The Plaintiff, for example, clearly 'interrupted' the police officers regarding the Charles Hill incident."App. to Juris. Statement B-8. The court also held that the statute was not overbroad, because "the ordinance does not, at least facially, proscribe speech or conduct which is protected by the First Amendment." Id. at B-12.A panel of the Court of Appeals reversed. 764 F.2d 1156 (CA5 1985). The city's suggestion for rehearing en banc was granted, and the Court of Appeals, by a vote of 8-7, upheld the judgment of the panel. 789 F.2d 1103 (1986). The Court of Appeals agreed with the District Court's conclusion that the ordinance was not vague, and that it "plainly encompasse[d] mere verbal as well as physical conduct." Id. at 1109. Applying the standard established in Broadrick v. Oklahoma, 413 U. S. 601 (1973), however, the Court of Appeals concluded that the ordinance was substantially Page 482 U. S. 457 overbroad. It found that "[a] significant range of protected speech and expression is punishable and might be deterred by the literal wording of the statute." 789 F.2d at 1110.The Court of Appeals also reviewed the evidence of the unconstitutional application of the ordinance which Hill had introduced at trial. The court did not disturb the District Court's ruling that the statute had not been unconstitutionally applied to Hill or to the reporters. It did conclude, however, that other evidence not mentioned by the District Court revealed "a realistic danger of, and a substantial potential for, the unconstitutional application of the ordinance." Ibid. This evidence showed that the ordinance "is officially regarded as penalizing the mere interruption of a policeman while in the line of duty," id. at 1109, and has been employed to make arrests for, inter alia, "arguing," "[t]alking," "[i]nterfering," "[f]ailing to remain quiet," "[r]efusing to remain silent," "[v]erbal abuse," "[c]ursing," "[v]erbally yelling," and "[t]alking loudly, [w]alking through scene." Id. at 1113-1114. [Footnote 5]The city appealed, claiming that the Court of Appeals erred in holding the ordinance facially overbroad and in not abstaining until the ordinance had been construed by the Page 482 U. S. 458 state courts. [Footnote 6] We noted probable jurisdiction, 479 U.S. 811 (1986), and now affirm.IIThe elements of First Amendment overbreadth analysis are familiar. Only a statute that is substantially overbroad may be invalidated on its face. New York v. Ferber, 458 U. S. 747, 458 U. S. 769 (1982); Broadrick v. Oklahoma, supra."We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application. . . ."Id. at 413 U. S. 630 (BRENNAN, J., dissenting). Instead,"[i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct."Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U. S. 489, 455 U. S. 494 (1982); Page 482 U. S. 459 Kolender v. Lawson, 461 U. S. 352, 461 U. S. 359, n. 8 (1983). Criminal statutes must be scrutinized with particular care, e.g., Winters v. New York, 333 U. S. 507, 333 U. S. 515 (1948); those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application. E.g., Kolender, supra, at 461 U. S. 359, n. 8.The city's principal argument is that the ordinance does not inhibit the exposition of ideas, and that it bans "core criminal conduct" not protected by the First Amendment. Brief for Appellant 12. In its view, the application of the ordinance to Hill illustrates that the police employ it only to prohibit such conduct, and not "as a subterfuge to control or dissuade free expression." Ibid. Since the ordinance is "content-neutral," and since there is no evidence that the city has applied the ordinance to chill particular speakers or ideas, the city concludes that the ordinance is not substantially overbroad. [Footnote 7] Page 482 U. S. 460We disagree with the city's characterization for several reasons. First, the enforceable portion of the ordinance deals not with core criminal conduct, but with speech. As the city has conceded, the language in the ordinance making it unlawful for any person to "assault" or "strike" a police officer is preempted by the Texas Penal Code. Reply Brief for Appellant 10. The city explains, ibid., that "any species of physical assault on a police officer is encompassed within the provisions [§§ 22.01, 22.02] of the Texas Penal Code," [Footnote 8] and, under § 1.08 of the Code,"[n]o governmental subdivision or agency may enact or enforce a law that makes any conduct covered by this code an offense subject to a criminal penalty. Page 482 U. S. 461 Tex.Penal Code Ann. § 1.08 (1974). See Knott v. State, 648 S.W.2d 20 (Tex.App.1983) (reversing conviction obtained under municipal ordinance preempted by state penal code). Accordingly, the enforceable portion of the ordinance makes it 'unlawful for any person to . . . in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty,' and thereby prohibits verbal interruptions of police officers. [Footnote 9]"Second, contrary to the city's contention, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."Speech is often provocative and challenging. . . . [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."Terminiello v. Chicago, 337 U. S. 1, 4 (1949). In Lewis v. City of New Orleans, 415 U. S. 130 (1974), for example, the appellant was found to have yelled obscenities and threats at an officer who had asked appellant's husband to produce his driver's license. Appellant was convicted under a municipal ordinance that made it a crime"'for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.'"Id. at 415 U. S. 132 (citation omitted). We vacated the conviction and invalidated the ordinance as facially overbroad. Critical to our decision was the fact that the ordinance "punishe[d] only spoken words," and was not limited in scope to fighting words that, "by their very utterance, Page 482 U. S. 462 inflict injury or tend to incite an immediate breach of the peace.'" Id. at 415 U. S. 133, quoting Gooding v. Wilson, 405 U. S. 518, 405 U. S. 525 (1972); see also ibid. (Georgia breach-of-peace statute not limited to fighting words held facially invalid). Moreover, in a concurring opinion in Lewis, JUSTICE POWELL suggested that even the "fighting words" exception recognized in Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), might require a narrower application in cases involving words addressed to a police officer, because"a properly trained officer may reasonably be expected to 'exercise a higher degree of restraint' than the average citizen, and thus be less likely to respond belligerently to 'fighting words.'"415 U.S. at 415 U. S. 135 (citation omitted).The Houston ordinance is much more sweeping than the municipal ordinance struck down in Lewis. It is not limited to fighting words nor even to obscene or opprobrious language, but prohibits speech that "in any manner . . . interrupt[s]" an officer. [Footnote 10] The Constitution does not allow such speech to be made a crime. [Footnote 11] The freedom of individuals verbally Page 482 U. S. 463 to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state. [Footnote 12] Page 482 U. S. 464The city argues, however, that even if the ordinance encompasses some protected speech, its sweeping nature is both inevitable and essential to maintain public order. The city recalls this Court's observation in Smith v. Goguen, 415 U. S. 566, 415 U. S. 581 (1974):"There are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision. Control of the broad range of disorderly conduct that may inhibit a policeman in the performance of his official duties may be one such area requiring, as it does, an on-the-spot assessment of the need to keep order."The city further suggests that its ordinance is comparable to the disorderly conduct statute upheld against a facial challenge in Colten v. Kentucky, 407 U. S. 104 (1972). Page 482 U. S. 465This Houston ordinance, however, is not narrowly tailored to prohibit only disorderly conduct or fighting words, [Footnote 13] and in no way resembles the law upheld in Colten. [Footnote 14] Although we appreciate the difficulties of drafting precise laws, we have repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them. [Footnote 15] As the Court observed over a Page 482 U. S. 466 century ago,"[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large."United States v. Reese, 92 U. S. 214, 92 U. S. 221 (1876). In Lewis, JUSTICE POWELL elaborated the basis for our concern with such sweeping, dragnet laws:"This ordinance, as construed by the Louisiana Supreme Court, confers on police a virtually unrestrained power to arrest and charge persons with a violation. Many arrests are made in 'one-on-one' situations where the only witnesses are the arresting officer and the person charged. All that is required for conviction is that the court accept the testimony of the officer that obscene or opprobrious language had been used toward him while in the performance of his duties. *. . .""Contrary to the city's argument, it is unlikely that limiting the ordinance's application to genuine 'fighting words' would be incompatible with the full and adequate performance of an officer's duties. . . . [I]t is usually unnecessary [to charge a person] with the less serious offense of addressing obscene words to the officer. The present type of ordinance tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person. The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident."415 U.S. at 415 U. S. 135-136, and n.Houston's ordinance criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement. The ordinance's plain language is admittedly violated scores of times daily, App. 77, yet only some individuals -- those chosen by the police Page 482 U. S. 467 in their unguided discretion -- are arrested. Far from providing the "breathing space" that "First Amendment freedoms need . . . to survive," NAACP v. Button, 371 U. S. 415, 371 U. S. 433 (1963), the ordinance is susceptible of regular application to protected expression. We conclude that the ordinance is substantially overbroad, and that the Court of Appeals did not err in holding it facially invalid.IIIThe city has also urged us not to reach the merits of Hill's constitutional challenge, but rather to abstain for reasons related to those underlying our decision in Railroad Comm'n v. Pullman Co., 312 U. S. 496 (1941). In its view, there are certain limiting constructions readily available to the state courts that would eliminate the ordinance's overbreadth. [Footnote 16]Abstention is, of course, the exception and not the rule, Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 424 U. S. 813 (1976), and we have been particularly reluctant to abstain in cases involving facial challenges based on the First Amendment. [Footnote 17] We have held that "abstention . . . is inappropriate for cases [where] . . . statutes are justifiably attacked on their face as abridging free expression." Dombrowski v. Pfister, 380 U. S. 479, 380 U. S. 489-490 (1965)."In such case[s], to force the plaintiff who has commenced a federal action Page 482 U. S. 468 to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect."Zwickler v. Koota, 389 U. S. 241, 389 U. S. 252 (1967).Even if this case did not involve a facial challenge under the First Amendment, we would find abstention inappropriate. In cases involving a facial challenge to a statute, the pivotal question in determining whether abstention is appropriate is whether the statute is "fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question." Harman v. Forssenius, 380 U. S. 528, 380 U. S. 534-535 (1965); see also Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 467 U. S. 236 (1984) (same). If the statute is not obviously susceptible of a limiting construction, then, even if the statute has "never [been] interpreted by a state tribunal, . . . it is the duty of the federal court to exercise its properly invoked jurisdiction." Harman, supra, at 380 U. S. 535; see, e.g., Wisconsin v. Constantineau, 400 U. S. 433, 400 U.S. 439 (1971) ("Where there is no ambiguity in the state statute, the federal court should not abstain, but should proceed to decide the federal constitutional claim"); Zuwickler v. Koota, supra, at 389 U. S. 250-251, and n. 14 (citing cases).This ordinance is not susceptible to a limiting construction because, as both courts below agreed, its language is plain and its meaning unambiguous. Its constitutionality cannot "turn upon a choice between one or several alternative meanings." Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 378 (1964); cf. Babbitt v. Farm Workers, 442 U. S. 289, 442 U. S. 308 (1979). Nor can the ordinance be limited by severing discrete unconstitutional subsections from the rest. For example, it cannot be limited to "core criminal conduct" such as physical assaults or fighting words, because those applications are preempted by state law. See supra, at 482 U. S. 460-461, and n. 10. The enforceable portion of this ordinance is a general prohibition of speech that "simply has no core" of constitutionally unprotected expression to which it might be limited. Smith v. Page 482 U. S. 469 Goguen, 415 U.S. at 415 U. S. 578 (emphasis deleted). The city's proposed constructions are insufficient, [Footnote 18] and it is doubtful that even "a remarkable job of plastic surgery upon the face of the ordinance" could save it. Shuttlesworth v. Birmingham, 394 U. S. 147, 394 U. S. 153 (1969). In sum,"[s]ince 'the naked question, uncomplicated by [ambiguous language], is whether the Act on its face is unconstitutional,' Wisconsin v. Constantineau, 400 U. S. 433, 400 U.S. 439 (1971), abstention from federal jurisdiction is not required."Hawaii Housing Authority, supra, at 467 U. S. 237.The city relies heavily on its claim that the state courts have not had an opportunity to construe the statute. Even if true, that factor would not, in itself, be controlling. As stated above, when a statute is not ambiguous, there is no need to abstain even if state courts have never interpreted the statute. Harman, supra, at 380 U. S. 534. For example, we have declined to abstain from deciding a facial challenge to a state statute when the suit was filed in federal court just four days after the statute took effect. Brockett v. Spokane Arcades, Inc., 472 U. S. 491 (1985). But in any event, the city's claim that state courts have not had an opportunity to construe the statute is misleading. Only the state appellate courts appear to have lacked this opportunity. It is undisputed that Houston's Municipal Courts, which have been courts of Page 482 U. S. 470 record in Texas since 1976, have had numerous opportunities to narrow the scope of the ordinance. [Footnote 19] There is no evidence that they have done so. [Footnote 20] In fact, the city's primary position throughout this litigation has been "to insis[t] on the validity of the ordinance as literally read." 789 F.2d at 1107. We have long recognized that trial court interpretations, such as those given in jury instructions, constitute "a ruling on a question of state law that is as binding on us as though the precise words had been written into the ordinance." Terminiello, 337 U.S. at 337 U. S. 4. Thus, where municipal courts have regularly applied an unambiguous statute, there is certainly no need for a federal court to abstain until state appellate courts have an opportunity to construe it.The possibility of certification does not change our analysis. [Footnote 21] The certification procedure is useful in reducing the substantial burdens of cost and delay that abstention places on litigants. Where there is an uncertain question of state law that would affect the resolution of the federal claim, and where delay and expense are the chief drawbacks to abstention, the availability of certification becomes an important factor in deciding whether to abstain. E.g., Bellotti v. Baird, 428 U. S. 132 (1976). Nevertheless, even where we have recognized the importance of certification in deciding whether to abstain, we have been careful to note that the Page 482 U. S. 471 availability of certification is not, in itself, sufficient to render abstention appropriate. Id. at 428 U. S. 151. It would be manifestly inappropriate to certify a question in a case where, as here, there is no uncertain question of state law whose resolution might affect the pending federal claim. As we have demonstrated, supra at 482 U. S. 468-469, this ordinance is neither ambiguous nor obviously susceptible of a limiting construction. [Footnote 22] A federal court may not properly ask a state court if it would care in effect to rewrite a statute. [Footnote 23] We therefore see no need in this case to abstain pending certification.IVToday's decision reflects the constitutional requirement that, in the face of verbal challenges to police action, officers and municipalities must respond with restraint. We are Page 482 U. S. 472 mindful that the preservation of liberty depends in part upon the maintenance of social order. Cf. Teminiello v. Chicago, supra, at 337 U. S. 37 (dissenting opinion). But the First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive. We therefore affirm the judgment of the Court of Appeals.It is so ordered

U.S. Supreme CourtCity of Houston v. Hill, 482 U.S. 451 (1987)City of Houston, Texas v. HillNo. 86-243Argued March 23, 1987Decided June 15, 1987482 U.S. 451SyllabusUpon shouting at police in an attempt to divert their attention from his friend during a confrontation, appellee was arrested for "willfully . . . interrupt[ing] a city policeman . . . by verbal challenge during an investigation" in violation of a municipal ordinance making it unlawful for any person "to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty." After his acquittal in Municipal Court, appellee brought suit in Federal District Court challenging the ordinance's constitutionality and seeking, inter alia, damages and attorney's fees. The District Court held that the ordinance was not unconstitutionally vague or overbroad on its face, but the Court of Appeals reversed, finding that the ordinance was substantially overbroad, since its literal wording punished and might deter a significant range of protected speech.Held:1. A municipal ordinance that makes it unlawful to interrupt a police officer in the performance of his duty is substantially overbroad, and therefore invalid on its face under the First Amendment. The ordinance in question criminalizes a substantial amount of, and is susceptible of regular application to, constitutionally protected speech, and accords the police unconstitutional enforcement discretion, as is demonstrated by evidence indicating that, although the ordinance's plain language is violated scores of times daily, only those individuals chosen by police in their unguided discretion are arrested. Appellant's argument that the ordinance is not substantially overbroad because it does not inhibit the exposition of ideas, but simply bans unprotected "core criminal conduct," is not persuasive. Since the ordinance's language making it unlawful to "assault" or "strike" a police officer is expressly preempted by the State Penal Code, its enforceable portion prohibits verbal interruptions of police, and thereby deals with speech, rather than with core criminal conduct. Moreover, although speech might be prohibited if it consists of "fighting words" that by their very utterance inflict injury or tend to incite an immediate breach of the peace, the ordinance in question is not limited to such expressions, but broadly applies to speech that "in any manner . . . interrupt[s] any policeman," and thereby impermissibly infringes the constitutionally protected freedom of individuals verbally to Page 482 U. S. 452 oppose or challenge police action. Appellant's contention that the ordinance's sweeping nature is both inevitable and essential to maintain public order is also without merit, since the ordinance is not narrowly tailored to prohibit only disorderly conduct or fighting words, but impermissibly provides police with unfettered discretion to arrest individuals for words or conduct that are simply annoying or offensive. Pp. 482 U. S. 458-467.2. Abstention -- assertedly to allow the state courts to reach a readily available limiting construction that would eliminate the ordinance's overbreadth -- would be inappropriate here. Even if this case did not involve a First Amendment facial challenge, for which abstention is particularly inappropriate, the ordinance in question is plain and unambiguous, and thus is not susceptible to a limiting construction. Moreover, it cannot be limited by severing discrete unconstitutional subsections, since its enforceable portion is unconstitutional in its entirety. Even if the municipal courts had not had many opportunities to narrow the ordinance's scope, appellant's claim that state courts had not had the chance to construe the ordinance would be unavailing in light of the ordinance's nonambiguity. Nor does the availability of certification to state courts under state law in itself render abstention appropriate where, as here, there is no uncertain question of state law to be resolved. Pp. 482 U. S. 467-471.3. Although the preservation of liberty depends in part upon the maintenance of social order, the First Amendment requires that officers and municipalities respond with restraint in the face of verbal challenges to police action, since a certain amount of expressive disorder is inevitable in a society committed to individual freedom, and must be protected if that freedom would survive. Pp. 482 U. S. 471-472.789 F.2d 1103, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BLACKMUN, J., filed a concurring opinion, post p. 482 U. S. 472. SCALIA, J., filed an opinion concurring in the judgment, post p. 482 U. S. 472. POWELL, J., filed an opinion concurring in the judgment in part and dissenting in part, in which O'CONNOR, J., joined, in Parts I and II of which REHNQUIST, C.J., joined, and in Parts II and III of which SCALIA, J., joined, post p. 473. REHNQUIST, C.J., filed a dissenting opinion, post p. 482 U. S. 481. Page 482 U. S. 453

1993_92-9093

Lee Ann Jones Peters argued the cause for petitioner.With her on the briefs was Robert A. Ravitz.A. Diane Blalock, Assistant Attorney General of Oklahoma, argued the cause for respondent. With her on the brief was Sandra D. Howard, Assistant Attorney General. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner murdered and robbed Roger Sarfaty in 1985.In 1986, he murdered and robbed Lloyd Thompson. Petitioner was tried separately for each murder. The Thompson trial occurred first, and an Oklahoma jury found petitioner guilty and sentenced him to death. Petitioner was then tried for the Sarfaty murder. A different Oklahoma jury found him guilty and sentenced him to death. During the sentencing phase of the Sarfaty trial, the State introduced a copy of the judgment and sentence petitioner received for the Thompson murder. Petitioner contends that the admission of evidence regarding his prior death sentence undermined the Sarfaty jury's sense of responsibility for determining the appropriateness of the death penalty, in violation of the Eighth and Fourteenth Amendments. We disagree and hold that the admission of this evidence did not amount to constitutional error.In Oklahoma, capital trials are bifurcated into guilt and sentencing phases. Okla. Stat., Tit. 21, § 701.10 (1981). The* A brief of amici curiae urging affirmance was filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Richard A. Cordray, State Solicitor, Simon B. Karas, Deputy Chief Counsel, and Cordelia A. Glenn and Mary L. Hollern, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Pamela Carter of Indiana, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, and Stephen D. Rosenthal of Virginia.4sentencing jury may not impose a death sentence unless it unanimously finds the existence of at least one statutory aggravating circumstance beyond a reasonable doubt, and that any aggravating circumstances outweigh any mitigating circumstances. § 701.12. At the sentencing phase of the Sarfaty trial, the State sought to prove four aggravating circumstances, two of which are relevant to our decision: (1) that petitioner had been previously convicted of a violent felony; and (2) that petitioner would constitute a continuing threat to society.lIn attempting to establish these two aggravating circumstances, the State introduced evidence relating to the Thompson murder. The State presented testimony by Thompson's neighbor concerning her observations the day of the murder, Thompson's autopsy report, and photographs and fingerprints showing that the defendant in the Thompson case was in fact petitioner. The State also introduced a copy of the judgment and sentence from the Thompson murder conviction. That document revealed that petitioner had been convicted of first-degree murder and had been sentenced to death. App. 5-6. It also showed, and the trial court told the jury, that petitioner planned on appealing from the judgment and sentence. Id., at 7. Petitioner's counsel objected to the admission of the document. He argued that, regardless of the admissibility of the evidence of petitioner's conviction, the death sentence petitioner received was not proper for the jury to consider. The trial court overruled the objection and admitted the evidence. Petitioner later presented evidence in mitigation.Before closing arguments, the trial court instructed the jury. It identified the four aggravating circumstances the State sought to establish and told the jury that "[i]n determining which sentence you may impose in this case, you may1 The other two aggravating circumstances were that the murder was especially heinous, atrocious, and cruel, and that it was committed to avoid lawful arrest or prosecution.5consider only those [four] circumstances." Id., at 9. The court then identified the 17 mitigating circumstances offered by petitioner. The jury was instructed that it could not impose the death penalty unless it unanimously found that one or more aggravating circumstances existed beyond a reasonable doubt and that any such circumstances outweighed any mitigating circumstances. Id., at 8-12. In closing, the court admonished the jury:"You are the determiner of the facts. The importance and worth of the evidence is for you to decide."I have made rulings during the second part of this trial. In ruling, I have not in any way suggested to you, nor intimidated [sic] in any way, what you should decide. I do not express any opinion whether or not aggravating circumstances or mitigating circumstances did or did not exist, nor do I suggest to you in any way the punishment to be imposed by you."You must not use any kind of chance in reaching a verdict, but you must rest it on the belief of each of you who agrees with it." Id., at 13.The jury found that all four aggravating circumstances existed and that they outweighed the mitigating circumstances. It accordingly imposed a death sentence. Petitioner appealed. While his appeal in this case was pending, the Oklahoma Court of Criminal Appeals overturned petitioner's conviction for the Thompson murder. See Romano v. Oklahoma, 827 P. 2d 1335 (1992) (Romano I). The Oklahoma Court of Criminal Appeals held that petitioner's trial should have been severed from that of his codefendant; it therefore reversed and remanded for a new triaI.2In his appeal in this case, petitioner argued, inter alia, that the trial court erred by admitting evidence of his conviction and sentence for the Thompson murder. He asserted2 On retrial for the Thompson murder, petitioner was again convicted and again sentenced to death. Brief for Petitioner 31, n. 11.6that it was improper to admit the conviction because it was not final at the time of admission, and it had since been overturned. He also contended that the evidence of his death sentence in the Thompson case impermissibly reduced the Sarfaty sentencing jury's sense of responsibility for its decision, in violation of Caldwell v. Mississippi, 472 U. S. 320 (1985).The Oklahoma Court of Criminal Appeals affirmed. 847 P. 2d 368, 390 (1993) (Romano II). The Oklahoma court concluded that the evidence regarding petitioner's prior death sentence was irrelevant. Because the jury was properly instructed in this case, however, it could not be said "that the jury in any way shifted the responsibility for their decision or considered their decision any less significant than they would otherwise." Ibid. The Court of Criminal Appeals further held that the admission of the evidence "did not so infect the sentencing determination with unfairness as to make the determination to impose the death penalty a denial of due process." Id., at 391.Petitioner sought our review, and we granted certiorari, limited to the following question: "Does admission of evidence that a capital defendant already has been sentenced to death in another case impermissibly undermine the sentencing jury's sense of responsibility for determining the appropriateness of the defendant's death, in violation of the Eighth and Fourteenth Amendments?" 510 U. S. 943 (1993). We now affirm.It is helpful to begin by placing petitioner's challenge within the larger context of our Eighth Amendment death penalty jurisprudence. We have held that the Eighth Amendment's concern that the death penalty be both appropriate and not randomly imposed requires the States to perform two somewhat contradictory tasks in order to impose the death penalty.First, States must properly establish a threshold below which the penalty cannot be imposed. McCleskey v. Kemp,7481 U. S. 279, 305 (1987). To ensure that this threshold is met, the "State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold." Ibid. As we stated in Lowenfield v. Phelps, 484 U. S. 231 (1988), "[t]o pass constitutional muster, a capital sentencing scheme must 'genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.'" Id., at 244 (quoting Zant v. Stephens, 462 U. S. 862, 877 (1983)). In this respect, a State's sentencing procedure must suitably direct and limit the decisionmaker's discretion "'so as to minimize the risk of wholly arbitrary and capricious action.'" Id., at 874 (quoting Gregg v. Georgia, 428 U. S. 153, 189 (1976)). Petitioner does not allege that Oklahoma's sentencing scheme fails to adequately perform the requisite narrowing.Second, States must ensure that "capital sentencing decisions rest on [an] individualized inquiry," under which the "character and record of the individual offender and the circumstances of the particular offense" are considered. M cCleskey, supra, at 303 (internal quotation marks omitted); see also Clemons v. Mississippi, 494 U. S. 738, 748 (1990). To this end, "States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant." McCleskey, supra, at 306.Within these constitutional limits, "the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished." Blystone v. Pennsylvania, 494 U. S. 299, 309 (1990). This latitude extends to evidentiary rules at sentencing proceedings. See, e. g., Gregg, supra, at 203-204 (approving "the wide scope of evidence and argument allowed at presentence hearings"8in Georgia). As we observed in California v. Ramos, 463 U. S. 992, 999 (1983):"In ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court's principal concern has been more with the procedure by which the State imposes the death sentence than with the substantive factors the State lays before the jury as a basis for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty."See also id., at 1008 ("Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty ... the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment").We have also held, in Caldwell v. Mississippi, that the jury must not be misled regarding the role it plays in the sentencing decision. See 472 U. S., at 336 (plurality opinion); id., at 341-342 (O'CONNOR, J., concurring in part and concurring in judgment). The prosecutor in Caldwell, in remarks which "were quite focused, unambiguous, and strong," misled the jury to believe that the responsibility for sentencing the defendant lay elsewhere. Id., at 340. The trial judge "not only failed to correct the prosecutor's remarks, but in fact openly agreed with them." Id., at 339.The plurality concluded that the prosecutor's remarks, along with the trial judge's affirmation, impermissibly "minimize[d] the jury's sense of responsibility for determining the appropriateness of death." Id., at 341. Such a diminution, the plurality felt, precluded the jury from properly performing its responsibility to make an individualized determination of the appropriateness of the death penalty. Id., at 330331. JUSTICE O'CONNOR, in her opinion concurring in part and concurring in the judgment, identified more narrowly the infirmity in the prosecutor's remarks: "In my view, the9prosecutor's remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility." Id., at 342.As JUSTICE O'CONNOR supplied the fifth vote in Caldwell, and concurred on grounds narrower than those put forth by the plurality, her position is controlling. See Marks v. United States, 430 U. S. 188, 193 (1977); Gregg, supra, at 169, n. 15. Accordingly, we have since read Caldwell as "relevant only to certain types of comment-those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision." Darden v. Wainwright, 477 U. S. 168, 184, n. 15 (1986). Thus, "[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." Dugger v. Adams, 489 U. S. 401, 407 (1989); see also Sawyer v. Smith, 497 U. S. 227, 233 (1990).Petitioner argues that Caldwell controls this case. He contends that the evidence of his prior death sentence impermissibly undermined the sentencing jury's sense of responsibility, in violation of the principle established in Caldwell. We disagree. The infirmity identified in Caldwell is simply absent in this case: Here, the jury was not affirmatively misled regarding its role in the sentencing process. The evidence at issue was neither false at the time it was admitted, nor did it even pertain to the jury's role in the sentencing process. The trial court's instructions, moreover, emphasized the importance of the jury's role. As the Court of Criminal Appeals observed:"The jury was instructed that it had the responsibility for determining whether the death penalty should be imposed .... It was never conveyed or intimated in any way, by the court or the attorneys, that the jury could shift its responsibility in sentencing or that its role in any way had been minimized." Romano II, 847 P. 2d, at 390.10We do not believe that the admission of evidence regarding petitioner's prior death sentence affirmatively misled the jury regarding its role in the sentencing process so as to diminish its sense of responsibility. The admission of this evidence, therefore, did not contravene the principle established in Caldwell.That this case is different from Caldwell only resolves part of petitioner's challenge. In addition to raising a "Caldwell" claim, petitioner presents a more general contention: He argues that because the evidence of his prior death sentence was inaccurate and irrelevant, the jury's consideration of it rendered his sentencing proceeding so unreliable that the proceeding violated the Eighth Amendment. See Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 305 (1976). The Oklahoma court agreed that the "evidence of the imposition of the death penalty by another jury is not relevant in determining the appropriateness of the death sentence for the instant offense." Romano II, supra, at 391. That the evidence may have been irrelevant as a matter of state law, however, does not render its admission federal constitutional error. See Estelle v. McGuire, 502 U. S. 62, 67 (1991).Some of the cases upon which petitioner relies for support, to be sure, do hold that the Constitution bars the introduction of certain evidence at sentencing proceedings. But these cases are plainly inapposite. Petitioner cites, for example, Dawson v. Delaware, 503 U. S. 159 (1992). There we held that the trial court erred by admitting evidence, at Dawson's capital sentencing proceeding, regarding Dawson's membership in a white racist prison gang known as the Aryan Brotherhood. See id., at 162-163. It was constitutional error, however, only because the admission violated "Dawson's First Amendment rights." Id., at 167. Dawson thus involved application of the principle first enunciated in Zant: An aggravating circumstance is invalid if "it authorizes a jury to draw adverse inferences from conduct that is11constitutionally protected." 462 U. S., at 885. Petitioner does not argue that the admission of evidence regarding his prior death sentence allowed the jury to consider, in aggravation, constitutionally protected conduct. Accordingly, our decisions in Dawson and Zant do not support petitioner's contention.Petitioner also cites Johnson v. Mississippi, 486 U. S. 578 (1988), but it, too, is inapposite. There we reversed the imposition of Johnson's death sentence because the only evidence supporting an aggravating factor turned out to be invalid, and because the Mississippi Supreme Court refused to reweigh the remaining, untainted aggravating circumstances against the mitigating circumstances. Id., at 586, 590, n. 8. Similarly, in this case the only evidence supporting the "prior violent felony" aggravating circumstance was the judgment from petitioner's conviction for the Thompson murder. That evidence, like the evidence in Johnson, was rendered invalid by the reversal of petitioner's conviction on appeal.Here, however, the Oklahoma Court of Criminal Appeals struck the "prior violent felony" aggravator, reweighed the three untainted aggravating circumstances against the mitigating circumstances, and still concluded that the death penalty was warranted. See Romano II, supra, at 389, 393394. The Court of Criminal Appeals' approach is perfectly consistent with our precedents, including Johnson, where we remanded without limiting the Mississippi Supreme Court's authority to reweigh the remaining aggravating circumstances against the mitigating circumstances. See 486 U. S., at 590; id., at 591 (White, J., concurring); see also Clemons, 494 U. S., at 744-750. Contrary to petitioner's assertion, Johnson does not stand for the proposition that the mere admission of irrelevant and prejudicial evidence requires the overturning of a death sentence.Petitioner's argument, pared down, seems to be a request that we fashion general evidentiary rules, under the guise of interpreting the Eighth Amendment, which would govern12the admissibility of evidence at capital sentencing proceedings. We have not done so in the past, however, and we will not do so today. The Eighth Amendment does not establish a federal code of evidence to supersede state evidentiary rules in capital sentencing proceedings. Cf. Payne v. Tennessee, 501 U. S. 808, 824-825 (1991); Blystone, 494 U. S., at 309.Petitioner finally argues that the introduction of the evidence in question violated the Due Process Clause of the Fourteenth Amendment. It is settled that this Clause applies to the sentencing phase of capital trials. See, e. g., Payne, supra, at 825; Clemons, supra, at 746 ("[C]apital sentencing proceedings must of course satisfy the dictates of the Due Process Clause").We believe the proper analytical framework in which to consider this claim is found in Donnelly v. DeChristoforo, 416 U. S. 637, 643 (1974). There we addressed a claim that remarks made by the prosecutor during his closing argument were so prejudicial as to violate the defendant's due process rights. We noted that the case was not one in which the State had denied a defendant the benefit of a specific constitutional right, such as the right to counsel, or in which the remarks so prejudiced a specific right as to amount to a denial of that right. Id., at 643. Accordingly, we sought to determine whether the prosecutor's remark "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Ibid. We concluded, after an "examination of the entire proceedings," that the remarks did not amount to a denial of constitutional due process. Ibid.The relevant question in this case, therefore, is whether the admission of evidence regarding petitioner's prior death sentence so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process. See Sawyer, 497 U. S., at 244 (observing that "[t]he Caldwell rule was ... added to [Donnelly's] existing guarantee of due process protection against13fundamental unfairness"); see also Darden, 477 U. S., at 178181 (in analyzing allegedly improper comments made by prosecutor during closing argument of guilt-innocence stage of capital trial, "[t]he relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process'" (quoting Donnelly, supra, at 643)). Under this standard of review, we agree with the Oklahoma Court of Criminal Appeals that the admission of this evidence did not deprive petitioner of a fair sentencing proceeding.The evidence that petitioner received a death sentence for murdering Thompson was deemed irrelevant by the Oklahoma Court of Criminal Appeals. See Romano II, 847 P. 2d, at 391. However, if the jurors followed the trial court's instructions, which we presume they did, see Richardson v. Marsh, 481 U. S. 200, 206-207, 211 (1987), this evidence should have had little-if any-effect on their deliberations. Those instructions clearly and properly described the jurors' paramount role in determining petitioner's sentence, and they also explicitly limited the jurors' consideration of aggravating factors to the four which the State sought to prove. Regardless of the evidence as to petitioner's death sentence in the Thompson case, the jury had sufficient evidence to justify its conclusion that these four aggravating circumstances existed. Although one of the aggravating circumstances proved invalid when petitioner's conviction for the Thompson murder was overturned on appeal, the other three remained untainted and still outweighed the mitigating circumstances. See Romano II, supra, at 389, 393-394. In short, the instructions did not offer the jurors any means by which to give effect to the evidence of petitioner's sentence in the Thompson murder, and the other relevant evidence presented by the State was sufficient to justify the imposition of the death sentence in this case.Even assuming that the jury disregarded the trial court's instructions and allowed the evidence of petitioner's prior14death sentence to influence its decision, it is impossible to know how this evidence might have affected the jury. It seems equally plausible that the evidence could have made the jurors more inclined to impose a death sentence, or it could have made them less inclined to do so. Either conclusion necessarily rests upon one's intuition. To hold on the basis of this record that the admission of evidence relating to petitioner's sentence in the Thompson case rendered petitioner's sentencing proceeding for the Sarfaty murder fundamentally unfair would thus be an exercise in speculation, rather than reasoned judgment.The judgment of the Oklahoma Court of Criminal Appeals isAffirmed

CASES ADJUDGEDIN THESUPREME COURT OF THE UNITED STATESATOCTOBER TERM, 1993SyllabusROMANO v. OKLAHOMACERTIORARI TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMANo. 92-9093. Argued March 22, 1994-Decided June 13, 1994During the sentencing phase of petitioner's first-degree murder trial in Oklahoma, the State introduced a copy of the judgment and death sentence he had received during an earlier trial for another murder. The jury ultimately found that the aggravating circumstances outweighed the mitigating circumstances, and imposed a second death sentence on petitioner. In affirming, the Oklahoma Court of Criminal Appeals acknowledged that the evidence of petitioner's prior death sentence was irrelevant to determining the appropriateness of the second death sentence, but held that admission of the evidence did not violate the Eighth and Fourteenth Amendments under Caldwell v. Mississippi, 472 U. S. 320, or so infect the sentencing determination with unfairness as to amount to a denial of due process.Held: The admission of evidence regarding petitioner's prior death sentence did not amount to constitutional error. Pp. 6-14.(a) Admission of the evidence at issue did not contravene the principle established in Caldwell, supra, at 342 (O'CONNOR, J., concurring in part and concurring in judgment), because the evidence did not affirmatively mislead the jury regarding its role in the sentencing process so as to diminish its sense of responsibility for the capital sentencing decision. Such evidence was not false at the time it was admitted and did not even pertain to the jury's sentencing role. The trial court's instructions, moreover, emphasized the importance of that role and never con-I2Syllabusveyed or intimated that the jury could shift its responsibility in sentencing. Pp. 6-10.(b) Although the evidence in question may have been irrelevant, the jury's consideration of it did not render the sentencing proceeding so unreliable that it violated the Eighth Amendment under Lockett v. Ohio, 438 U. S. 586, 604 (plurality opinion), and Woodson v. North Carolina, 428 U. S. 280, 305. That the evidence may have been irrelevant as a matter of state law does not render its admission federal constitutional error. See Estelle v. McGuire, 502 U. S. 62, 67. Dawson v. Delaware, 503 U. S. 159, 167, and Zant v. Stephens, 462 U. S. 862, 885, are plainly inapposite, since petitioner does not argue that admission of the evidence allowed the jury to consider, in aggravation, constitutionally protected conduct. Johnson v. Mississippi, 486 U. S. 578, 586, 590, n. 8, is also inapposite, since it is perfectly consistent with the Court of Criminal Appeals' approach and does not stand for the proposition that the mere admission of irrelevant and prejudicial evidence requires the overturning of a death sentence. This Court declines petitioner's request to fashion a federal code of general evidentiary rules, under the guise of interpreting the Eighth Amendment, which would supersede state rules in capital sentencing proceedings. Pp. 10-12.(c) Introduction of the evidence in question did not so infect the trial with unfairness as to render the jury's imposition of the death penalty a denial of due process under the analytical framework set forth in Donnelly v. DeChristoforo, 416 U. S. 637, 643. Presuming that the trial court's instructions were followed, they did not offer the jurors any means by which to give effect to the irrelevant evidence of petitioner's prior sentence, and the relevant evidence presented by the State was sufficient to justify the imposition of the death sentence in this case. Even assuming that the jury disregarded its instructions and allowed the irrelevant evidence to influence its decision, a finding of fundamental unfairness on the basis of this record would be an exercise in speculation, rather than reasoned judgment, since it seems equally plausible that the evidence in question could have influenced the jurors either to impose, or not to impose, the death sentence. Pp. 12-14.847 P. 2d 368, affirmed.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 14. BLACKMUN, J., filed a dissenting opinion, post, p. 15. GINSBURG, J., filed a dissenting opinion, in which BLACKMUN, STEVENS, and SOUTER, JJ., joined, post, p. 15.3Full Text of Opinion

1958_35

MR. JUSTICE HARLAN delivered the opinion of the Court.Once more the Court is required to resolve the conflicting constitutional claims of congressional power, and of an individual's right to resist its exercise. The congressional power in question concerns the internal process of Congress in moving within its legislative domain; it involves the utilization of its committees to secure "testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution." McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 160. The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, Page 360 U. S. 112 it cannot inquire into matters which are within the exclusive province of one of the other branches of the Government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive. And the Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly, in the context of this case, the relevant limitations of the Bill of Rights.The congressional power of inquiry, its range and scope, and an individual's duty in relation to it, must be viewed in proper perspective. McGrain v. Daugherty, supra; Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153, 214; Black, Inside a Senate Investigation, 172 Harpers Monthly 275 (February 1936). The power and the right of resistance to it are to be judged in the concrete, not on the basis of abstractions. In the present case, congressional efforts to learn the extent of a nationwide, indeed worldwide, problem have brought one of its investigating committees into the field of education. Of course, broadly viewed, inquiries cannot be made into the teaching that is pursued in any of our educational institutions. When academic teaching -- freedom and its corollary, learning -- freedom, so essential to the wellbeing of the Nation, are claimed, this Court will always be on the alert against intrusion by Congress into this constitutionally protected domain. But this does not mean that the Congress is precluded from interrogating a witness merely because he is a teacher. An educational institution is not a constitutional sanctuary from inquiry into matters that may otherwise be within the constitutional legislative domain merely for the reason that inquiry is made of someone within its walls. Page 360 U. S. 113In the setting of this framework of constitutional history, practice, and legal precedents, we turn to the particularities of this case.We here review petitioner's conviction under 2 U.S.C. § 192 [Footnote 1] for contempt of Congress, arising from his refusal to answer certain questions put to him by a Subcommittee of the House Committee on Un-American Activities during the course of an inquiry concerning alleged Communist infiltration into the field of education.The case is before us for the second time. Petitioner's conviction was originally affirmed in 1957 by a unanimous panel of the Court of Appeals, 100 U.S.App.D.C. 13, 240 F.2d 875. This Court granted certiorari, 354 U.S. 930, vacated the Judgment of the Court of Appeals, and remanded the case to that court for further consideration in light of Watkins v. United States, 354 U. S. 178, which had reversed a contempt of Congress conviction and which was decided after the Court of Appeals' decision here had issued. Thereafter, the Court of Appeals, sitting en banc, reaffirmed the conviction by a divided court. 102 U.S.App.D.C. 217, 252 F.2d 129. We again granted certiorari, 356 U.S. 929, to consider petitioner's statutory and constitutional challenges to his conviction, and particularly his claim that the Judgment below cannot stand under our decision in the Watkins case.Pursuant to a subpoena, and accompanied by counsel, petitioner, on June 28, 1954, appeared as a witness before Page 360 U. S. 114 this congressional Subcommittee. After answering a few preliminary questions and testifying that he had been a graduate student and teaching fellow at the University of Michigan from 1947 to 1950 and an instructor in psychology at Vassar College from 1950 to shortly before his appearance before the Subcommittee, petitioner objected generally to the right of the Subcommittee to inquire into his "political" and "religious" beliefs or any "other personal and private affairs" or "associational activities," upon grounds set forth in a previously prepared memorandum which he was allowed to file with the Subcommittee. [Footnote 2] Thereafter, petitioner specifically declined to answer each of the following five questions:"Are you now a member of the Communist Party? [Count One.]""Have you ever been a member of the Communist Party? [Count Two.]""Now, you have stated that you knew Francis Crowley. Did you know Francis Crowley as a member of the Communist Party? [Count Three.]""Were you ever a member of the Haldane Club of the Communist Party while at the University of Michigan? [ Count Four.]""Were you a member while a student of the University of Michigan Council of Arts, Sciences, and Professions? [Count Five.]"In each instance the grounds of refusal were those set forth in the prepared statement. Petitioner expressly disclaimed reliance upon "the Fifth Amendment." [Footnote 3] Page 360 U. S. 115Following receipt of the Subcommittee's report of these occurrences, the House duly certified the matter to the District of Columbia United States Attorney for contempt proceedings. An indictment in five Counts, each embracing one of petitioner's several refusals to answer, ensued. With the consent of both sides, the case was tried to the court without a jury, and, upon conviction under all Counts, a general sentence of six months' imprisonment and a fine of $250 was imposed.Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count, [Footnote 4] the judgment below must be upheld if the conviction upon any of the Counts is sustainable. See Claassen v. United States, 142 U. S. 140, 142 U. S. 147; Roviaro v. United States, 353 U. S. 53; Whitfield v. Ohio, 297 U. S. 431. As we conceive the ultimate issue in this case to be whether petitioner could properly be convicted of contempt for refusing to answer questions relating to his participation in or knowledge of alleged Communist Party activities at educational institutions in this country, we find it unnecessary to consider the validity of his conviction under the Third and Fifth Counts, the only ones involving questions which on their face do not directly relate to such participation or knowledge.Petitioner's various contentions resolve themselves into three propositions: first, the compelling of testimony by the Subcommittee was neither legislatively authorized nor constitutionally permissible because of the vagueness of Rule XI of the House of Representatives, Eighty-third Congress, the charter of authority of the parent Committee. [Footnote 5] Second, petitioner was not adequately apprised of the pertinency of the Subcommittee's questions to the Page 360 U. S. 116 subject matter of the inquiry. Third, the questions petitioner refused to answer infringed rights protected by the First Amendment.SUBCOMMITTEE'S AUTHORITY TO COMPEL TESTIMONYAt the outset, it should be noted that Rule XI authorized this Subcommittee to compel testimony within the framework of the investigative authority conferred on the Un-American Activities Committee. [Footnote 6] Petitioner contends that Watkins v. United States, supra, nevertheless held the grant of this power in all circumstances ineffective because of the vagueness of Rule XI in delineating the Committee jurisdiction to which its exercise was to be appurtenant. This view of Watkins was accepted by two of the dissenting judges below. 102 U.S.App.D.C. at 124, 252 F.2d at 136.The Watkins case cannot properly be read as standing for such a proposition. A principal contention in Watkins was that the refusals to answer were justified because the requirement of 2 U.S.C. § 192 that the questions asked be "pertinent to the question under inquiry" had not been satisfied. 354 U.S. at 354 U. S. 208-209. This Court reversed the conviction solely on that ground, holding that Watkins had not been adequately apprised of the subject matter of the Subcommittee's investigation or the pertinency Page 360 U. S. 117 thereto of the questions he refused to answer. Id. at 354 U. S. 206-209, 354 U. S. 214-215, and see the concurring opinion in that case, id. at 354 U. S. 216. In so deciding, the Court drew upon Rule XI only as one of the facets in the total mise en scene in its search for the "question under inquiry" in that particular investigation. Id. at 354 U. S. 209-215. The Court, in other words, was not dealing with Rule XI at large, and indeed in effect stated that no such issue was before it, id. at 354 U. S. 209. That the vagueness of Rule XI was not alone determinative is also shown by the Court's further statement that, aside from the Rule,"the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves, might sometimes make the topic [under inquiry] clear."Ibid. In short, while Watkins was critical of Rule XI, it did not involve the broad and inflexible holding petitioner now attributes to it. [Footnote 7]Petitioner also contends, independently of Watkins, that the vagueness of Rule XI deprived the Subcommittee of the right to compel testimony in this investigation into Communist activity. We cannot agree with this contention, which, in its furthest reach, would mean that the House Un-American Activities Committee under its existing authority has no right to compel testimony in any circumstances. Granting the vagueness of the Rule, we may not read it in isolation from its long history in the House of Representatives. Just as legislation is often given meaning by the gloss of legislative reports, administrative interpretation, and long usage, so the proper meaning of an authorization to a congressional committee is not to be derived alone from its abstract terms unrelated to the definite content furnished them by the course of congressional actions. The Rule comes to us with a Page 360 U. S. 118 "persuasive gloss of legislative history," United States v. Witkovich, 353 U. S. 194, 353 U. S. 199, which shows beyond doubt that, in pursuance of its legislative concerns in the domain of "national security," the House has clothed the Un-American Activities Committee with pervasive authority to investigate Communist activities in this country.The essence of that history can be briefly stated. The Un-American Activities Committee, originally known as the Dies Committee, was first established by the House in 1938. [Footnote 8] The Committee was principally a consequence of concern over the activities of the German-American Bund, whose members were suspected of allegiance to Hitler Germany, and of the Communist Party, supposed by many to be under the domination of the Soviet Union. [Footnote 9] From the beginning, without interruption to the present time and with the undoubted knowledge and approval of the House, the Committee has devoted a major part of its energies to the investigation of Communist activities. [Footnote 10] More particularly, in 1947, the Committee announced Page 360 U. S. 119 a wide-range program in this field, [Footnote 11] pursuant to which, during the years 1948 to 1952, it conducted diverse inquiries into such alleged Communist activities as espionage; efforts to learn atom bomb secrets; infiltration into labor, farmer, veteran, professional, youth, and motion picture groups, and, in addition, held a number of hearings upon various legislative proposals to curb Communist activities. [Footnote 12]In the context of these unremitting pursuits, the House has steadily continued the life of the Committee at the Page 360 U. S. 120 commencement of each new Congress; [Footnote 13] it has never narrowed the powers of the Committee, whose authority has remained throughout identical with that contained in Rule XI, and it has continuingly supported the Committee's activities with substantial appropriations. [Footnote 14] Beyond this, the Committee was raised to the level of a standing committee of the House in 1945, it having been but a special committee prior to that time. [Footnote 15]In light of this long and illuminating history, it can hardly be seriously argued that the investigation of Communist activities generally, and the attendant use of Page 360 U. S. 121 compulsory process, was beyond the purview of the Committee's intended authority under Rule XI.We are urged, however, to construe Rule XI so as at least to exclude the field of education from the Committee's compulsory authority. Two of the four dissenting judges below relied entirely, the other two alternatively, on this ground. 102 U.S.App.D.C. at 224, 226, 252 F.2d at 136, 138. The contention is premised on the course we took in United States v. Rumely, 345 U. S. 41, where in order to avoid constitutional issues, we construed narrowly the authority of the congressional committee there involved. We cannot follow that route here, for this is not a case where Rule XI has to "speak for itself, since Congress put no gloss upon it at the time of its passage," nor one where the subsequent history of the Rule has the "infirmity of post litem motam, self-serving declarations." See United States v. Rumely, supra, at 345 U. S. 44-45, 48.To the contrary, the legislative gloss on Rule XI is again compelling. Not only is there no indication that the House ever viewed the field of education as being outside the Committee's authority under Rule XI, but the legislative history affirmatively evinces House approval of this phase of the Committee's work. During the first year of its activities, 1938, the Committee heard testimony on alleged Communist activities at Brooklyn College, N.Y. [Footnote 16] The following year, it conducted similar hearings relating to the American Student Union and the Teachers Union. [Footnote 17] The field of "Communist influences in education" was one of the items contained in the Committee's Page 360 U. S. 122 1947 program. [Footnote 18] Other investigations including education took place in 1952 and 1953. [Footnote 19] And, in 1953, after the Committee had instituted the investigation involved in this case, the desirability of investigating Communism in education was specifically discussed during consideration of its appropriation for that year, which, after controversial debate, was approved. [Footnote 20]In this framework of the Committee's history, we must conclude that its legislative authority to conduct the inquiry presently under consideration is unassailable, and that, independently of whatever bearing the broad scope of Rule XI may have on the issue of "pertinency" in a given investigation into Communist activities, as in Watkins, the Rule cannot be said to be constitutionally Page 360 U. S. 123 infirm on the score of vagueness. The constitutional permissibility of that authority otherwise is a matter to be discussed later.PERTINENCY CLAIMUndeniably, a conviction for contempt under 2 U.S.C. § 192 cannot stand unless the questions asked are pertinent to the subject matter of the investigation. Watkins v. United States, supra, at 354 U. S. 214-215. But the factors which led us to rest decision on this ground in Watkins were very different from those involved here.In Watkins, the petitioner had made specific objection to the Subcommittee's questions on the ground of pertinency; the question under inquiry had not been disclosed in any illuminating manner, and the questions asked the petitioner were not only amorphous on their face, but, in some instances, clearly foreign to the alleged subject matter of the investigation -- "Communism in labor." Id. at 354 U. S. 185, 354 U. S. 209-215.In contrast, petitioner in the case before us raised no objections on the ground of pertinency at the time any of the questions were put to him. It is true that the memorandum which petitioner brought with him to the Subcommittee hearing contained the statement,"to ask me whether I am or have been a member of the Communist Party may have dire consequences. I might wish to . . . challenge the pertinency of the question to the investigation,"and, at another point, quoted from this Court's opinion in Jones v. Securities & Exchange Comm'n, 298 U. S. 1, language relating to a witness' right to be informed of the pertinency of questions asked him by an administrative agency. [Footnote 21] These statements cannot, Page 360 U. S. 124 however, be accepted as the equivalent of a pertinency objection. At best, they constituted but a contemplated objection to questions still unasked, and, buried as they were in the context of petitioner's general challenge to the power of the Subcommittee, they can hardly be considered adequate, within the meaning of what was said in Watkins, supra, at 354 U. S. 214-215, to trigger what would have been the Subcommittee's reciprocal obligation had it been faced with a pertinency objection.We need not, however, rest decision on petitioner's failure to object on this score, for here "pertinency" was made to appear "with undisputable clarity." Id. at 354 U. S. 214. First of all, it goes without saying that the scope of the Committee's authority was for the House, not a witness, to determine, subject to the ultimate reviewing responsibility of this Court. What we deal with here is whether petitioner was sufficiently apprised of "the topic under inquiry" thus authorized "and the connective reasoning whereby the precise questions asked relate [d] to it." Id. at 354 U. S. 215. In light of his prepared memorandum of constitutional objections, there can be no doubt that this petitioner was well aware of the Subcommittee's authority and purpose to question him as it did. See p. 360 U. S. 123, supra. In addition, the other sources of this information which we recognized in Watkins, supra, at 354 U. S. 209-215, leave no room for a "pertinency" objection on this record. The subject matter of the inquiry had been identified at the commencement of the investigation as Communist infiltration into the field of education. [Footnote 22] Just prior to petitioner's appearance before the Subcommittee, the scope of the day's hearings had been announced as,"in the main, communism in education and the experiences and background in the party by Francis X. T. Crowley. Page 360 U. S. 125 It will deal with activities in Michigan, Boston, and, in some small degree, New York."Petitioner had heard the Subcommittee interrogate the witness Crowley along the same lines as he, petitioner, was evidently to be questioned, and had listened to Crowley's testimony identifying him as a former member of an alleged Communist student organization at the University of Michigan while they both were in attendance there. [Footnote 23] Further, petitioner had stood mute in the face of the Chairman's statement as to why he had been called as a witness by the Subcommittee. [Footnote 24] And, lastly, unlike Watkins, id. at 354 U. S. 182-185, petitioner refused to answer questions as to his own Communist Party affiliations, whose pertinency, of course, was clear beyond doubt.Petitioner's contentions on this aspect of the case cannot be sustained.CONSTITUTIONAL CONTENTIONSOur function at this point is purely one of constitutional adjudication in the particular case and upon the particular record before us, not to pass judgment upon the general wisdom or efficacy of the activities of this Committee in a vexing and complicated field. Page 360 U. S. 126The precise constitutional issue confronting us is whether the Subcommittee's inquiry into petitioner's past or present membership in the Communist Party [Footnote 25] transgressed the provisions of the First Amendment, [Footnote 26] which, of course, reach and limit congressional investigations. Watkins, supra, at 354 U. S. 197.The Court's past cases establish sure guides to decision. Undeniably, the First Amendment in some circumstances protects an individual from being compelled to disclose his associational relationships. However, the protections of the First Amendment, unlike a proper claim of the privilege against self-incrimination under the Fifth Amendment, do not afford a witness the right to resist inquiry in all circumstances. Where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown. These principles were recognized in the Watkins case, where, in speaking of the First Amendment in relation to congressional inquiries, we said (at p. 354 U. S. 198):"It is manifest that, despite the adverse effects which follow upon compelled disclosure of private matters, not all such inquiries are barred. . . . The critical element is the existence of, Page 360 U. S. 127 and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness."See also American Communications Assn. v. Douds, 339 U. S. 382, 339 U. S. 399-400; United States v. Rumely, supra, at 345 U. S. 43-44. More recently, in National Association for the Advancement of Colored People v. Alabama, 357 U. S. 449, 357 U. S. 463-466, we applied the same principles in judging state action claimed to infringe rights of association assured by the Due Process Clause of the Fourteenth Amendment, and stated that the "subordinating interest of the State must be compelling'" in order to overcome the individual constitutional rights at stake. See Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 255, 354 U. S. 265 (concurring opinion). In light of these principles, we now consider petitioner's First Amendment claims.The first question is whether this investigation was related to a valid legislative purpose, for Congress may not constitutionally require an individual to disclose his political relationships or other private affairs except in relation to such a purpose. See Watkins v. United States, supra, at 354 U. S. 198.That Congress has wide power to legislate in the field of Communist activity in this Country, and to conduct appropriate investigations in aid thereof, is hardly debatable. The existence of such power has never been questioned by this Court, and it is sufficient to say, without particularization, that Congress has enacted or considered in this field a wide range of legislative measures, not a few of which have stemmed from recommendations of the very Committee whose actions have been drawn in question here. [Footnote 27] In the last analysis, this power rests on Page 360 U. S. 128 the right of self-preservation, "the ultimate value of any society," Dennis v. United States, 341 U. S. 494, 341 U. S. 509. Justification for its exercise, in turn, rests on the long and widely accepted view that the tenets of the Communist Party include the ultimate overthrow of the Government of the United States by force and violence, a view which has been given formal expression by the Congress. [Footnote 28] On these premises, this Court, in its constitutional adjudications, has consistently refused to view the Communist Party as an ordinary political party, and has upheld federal legislation aimed at the Communist problem which, in a different context, would certainly have raised constitutional issues of the gravest character. See, e.g., Carlson v. Landon, 342 U. S. 524; Galvan v. Press, 347 U. S. 522. On the same premises, this Court has upheld under the Fourteenth Amendment state legislation requiring those occupying or seeking public office to disclaim knowing membership in any organization advocating overthrow of the Government by force and violence, which legislation none can avoid seeing was aimed at membership in the Communist Party. See Gerende v. Board of Supervisors, 341 U. S. 56; Garner v. Board of Public Works, 341 U. S. 716. See also Beilan v. Board of Public Education, 357 U. S. 399; Lerner v. Casey, 357 U. S. 468; Adler v. Board of Education, 342 U. S. 485. Similarly, in other areas, this Court has recognized the close nexus between the Communist Party and violent overthrow of government. See Dennis v. United States, supra; American Communications Assn. v. Douds, supra. To suggest that, because the Communist Party may also sponsor peaceable political reforms, the constitutional issues before us should now be judged as if that Party were just an ordinary political Page 360 U. S. 129 party from the standpoint of national security, is to ask this Court to blind itself to world affairs which have determined the whole course of our national policy since the close of World War II, affairs to which Judge Learned Hand gave vivid expression in his opinion in United States v. Dennis, 183 F.2d 201, 213, and to the vast burdens which these conditions have entailed for the entire Nation.We think that investigatory power in this domain is not to be denied Congress solely because the field of education is involved. Nothing in the prevailing opinions in Sweezy v. New Hampshire, supra, stands for a contrary view. The vice existing there was that the questioning of Sweezy, who had not been shown ever to have been connected with the Communist Party, as to the contents of a lecture he had given at the University of New Hampshire, and as to his connections with the Progressive Party, then on the ballot as a normal political party in some 26 States, was too far removed from the premises on which the constitutionality of the State's investigation had to depend to withstand attack under the Fourteenth Amendment. See the concurring opinion in Sweezy, supra, at 354 U. S. 261, 354 U. S. 265, 354 U. S. 266, n. 3. This is a very different thing from inquiring into the extent to which the Communist Party has succeeded in infiltrating into our universities, or elsewhere, persons and groups committed to furthering the objective of overthrow. See Note 20 supra. Indeed, we do not understand petitioner here to suggest that Congress in no circumstances may inquire into Communist activity in the field of education. [Footnote 29] Page 360 U. S. 130 Rather, his position is, in effect, that this particular investigation was aimed not at the revolutionary aspects, but at the theoretical classroom discussion of communism. In our opinion, this position rests on a too constricted view of the nature of the investigatory process, and is not supported by a fair assessment of the record before us. An investigation of advocacy of or preparation for overthrow certainly embraces the right to identify a witness as a member of the Communist Party, see Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, and to inquire into the various manifestations of the Party's tenets. The strict requirements of a prosecution under the Smith Act, [Footnote 30] see Dennis v. United States, supra, and Yates v. United States, 354 U. S. 298, are not the measure of the permissible scope of a congressional investigation into "overthrow," for, of necessity, the investigatory process must proceed step by step. Nor can it fairly be concluded that this investigation was directed at controlling what is being taught at our universities, rather than at overthrow. The statement of the Subcommittee Chairman at the opening of the investigation evinces no such intention, [Footnote 31] and, so far as this record reveals Page 360 U. S. 131 nothing thereafter transpired which would justify our holding that the thrust of the investigation later changed. The record discloses considerable testimony concerning the foreign domination and revolutionary Page 360 U. S. 132 purposes and efforts of the Communist Party. [Footnote 32] That there was also testimony on the abstract philosophical level does not detract from the dominant theme of this investigation -- Communist infiltration furthering the alleged ultimate purpose of overthrow. And certainly the conclusion would not be justified that the questioning of petitioner would have exceeded permissible bounds had he not shut off the Subcommittee at the threshold.Nor can we accept the further contention that this investigation should not be deemed to have been in furtherance of a legislative purpose because the true objective of the Committee and of the Congress was purely "exposure." So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power. Arizona v. California, 283 U. S. 423, 283 U. S. 455, and cases there cited. "It is, of course, true," as was said in McCray v. United States, 195 U. S. 27, 195 U. S. 55,"that, if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the government, where a wrong motive or purpose has impelled to the exertion of the power, that abuses of a power conferred may be temporarily effectual. The Page 360 U. S. 133 remedy for this, however, lies, not in the abuse by the judicial authority of its functions, but in the people, upon whom, after all, under our institutions, reliance must be placed for the correction of abuses committed in the exercise of a lawful power."These principles, of course, apply as well to committee investigations into the need for legislation as to the enactments which such investigations may produce. Cf. Tenney v. Brandhove, 341 U. S. 367, 341 U. S. 377-378. Thus, in stating in the Watkins case, p. 354 U. S. 200, that "there is no congressional power to expose for the sake of exposure," we at the same time declined to inquire into the "motives of committee members," and recognized that their"motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly's legislative purpose is being served."Having scrutinized this record, we cannot say that the unanimous panel of the Court of Appeals which first considered this case was wrong in concluding that "the primary purposes of the inquiry were in aid of legislative processes." 240 F.2d at 881. [Footnote 33] Certainly this is not a case like Kilbourn v. Thompson, 103 U. S. 168, 103 U. S. 192, where"the House of Representatives not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government, because it was in its nature clearly judicial."See McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 171. The constitutional legislative power of Congress in this instance is beyond question. Page 360 U. S. 134Finally, the record is barren of other factors which, in themselves, might sometimes lead to the conclusion that the individual interests at stake were not subordinate to those of the state. There is no indication in this record that the Subcommittee was attempting to pillory witnesses. Nor did petitioner's appearance as a witness follow from indiscriminate dragnet procedures, lacking in probable cause for belief that he possessed information which might be helpful to the Subcommittee. [Footnote 34] And the relevancy of the questions put to him by the Subcommittee is not open to doubt.We conclude that the balance between the individual and the governmental interests here at stake must be struck in favor of the latter, and that, therefore, the provisions of the First Amendment have not been offended.We hold that petitioner's conviction for contempt of Congress discloses no infirmity, and that the judgment of the Court of Appeals must beAffirmed

U.S. Supreme CourtBarenblatt v. United States, 360 U.S. 109 (1959)Barenblatt v. United StatesNo. 35Argued November 18, 1958Decided June 8, 1959360 U.S. 109SyllabusSummoned to testify before a Subcommittee of the House of Representatives Committee on Un-American Activities, which was investigating alleged Communist infiltration into the field of education, petitioner, formerly a graduate student and teaching fellow at the University of Michigan, refused to answer questions as to whether he was then or had ever been a member of the Communist Party. He disclaimed reliance upon the privilege against self-incrimination, but objected generally to the right of the Subcommittee to inquire into his "political" and "religious" beliefs or any "other personal or private affairs" or "associational activities" upon grounds set forth in a previously prepared memorandum, which was based on the First, Ninth, and Tenth Amendments, the prohibition against bills of attainder and the doctrine of separation of powers. For such refusal, he was convicted of a violation of 2 U.S.C. § 192, which makes it a misdemeanor for any person summoned as a witness by either House of Congress or a committee thereof to refuse to answer any question pertinent to the question under inquiry. He was fined and sentenced to imprisonment for six months.Held: Petitioner's conviction is sustained. Pp. 360 U. S. 111-134.1. In the light of the Committee's history and the repeated extensions of its life, as well as the successive appropriations by the House of Representatives for the conduct of its activities, its legislative authority and that of the Subcommittee to conduct the inquiry under consideration here is unassailable, and House Rule XI, 83d Congress, which defines the Committee's authority, cannot be said to be constitutionally infirm on the score of vagueness. Watkins v. United States, 354 U. S. 178, distinguished. Pp. 360 U. S. 116-123.(a) Rule XI has a "persuasive gloss of legislative history" which shows beyond doubt that, in pursuance of its legislative concerns in the domain of "national security," the House of Representatives has clothed the Committee with pervasive authority to investigate Communist activities in this country. Pp. 360 U. S. 117-121. Page 360 U. S. 110(b) In the light of the legislative history, Rule XI cannot be construed so as to exclude the field of education from the Committee's compulsory authority. Pp. 360 U. S. 121-123.2. The record in this case refutes petitioner's contention that he was not adequately apprised of the pertinency of the Subcommittee's questions to the subject matter of the inquiry. Watkins v. United States, supra, distinguished. Pp. 360 U. S. 123-125.3. On the record in this case, the balance between the individual and the governmental interests here at stake must be struck in favor of the latter, and therefore the provisions of the First Amendment were not transgressed by the Subcommittee's inquiry into petitioner's past or present membership in the Communist Party. Pp. 360 U. S. 125-134.(a) Where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown. Pp. 360 U. S. 126-127.(b) The investigation here involved was related to a valid legislative purpose, since Congress has wide power to legislate in the field of Communist activity in this Country and to conduct appropriate investigations in aid thereof. Pp. 360 U. S. 127-129.(c) Investigatory power in this domain is not to be denied Congress solely because the field of education is involved, and the record in this case does not indicate any attempt by the Committee to inquire into the content of academic lectures or discussions, but only to investigate the extent to which the Communist Party had succeeded in infiltrating into our educational institutions persons and groups committed to furthering the Party's alleged objective of violent overthrow of the Government. Sweezy v. New Hampshire, 354 U. S. 234, distinguished. Pp. 360 U. S. 129-132.(d) On the record in this case, it cannot be said that the true objective of the Committee and of the Congress was purely "exposure," rather than furtherance of a valid legislative purpose. Pp. 360 U. S. 132-133.(e) The record is barren of other factors which, in themselves, might lead to the conclusion that the individual interests at stake were not subordinate to those of the Government. P. 360 U. S. 134.102 U.S.App.D.C. 217, 252 F.2d 129, affirmed. Page 360 U. S. 111

1959_295

MR. JUSTICE CLARK delivered the opinion of the Court.The question to be decided is whether real property declared to be surplus under the Surplus Property Act of 1944, 58 Stat. 765, but the record title to which is in the Reconstruction Finance Corporation, continues to be subject to local taxation under the exemption of § 8 of the Reconstruction Finance Corporation Act, 47 Stat. 5. [Footnote 1] The Supreme Court of California and the Supreme Court of Michigan [Footnote 2] have held that it does. The Court of Claims has reached the opposite conclusion. [Footnote 3] In view of this conflict, we agreed to hear this case, but postponed consideration of the question of jurisdiction to the hearing on the merits. 361 U.S. 859.On the question of jurisdiction, we believe that appellant did not make the required"explicit and timely insistence in the state courts that a state statute, as applied, is repugnant to the federal Constitution, treaties or laws. . . . And it has long been settled that an attack Page 362 U. S. 630 upon a tax assessment or levy, such as [appellant] here made, on the ground that it infringes a taxpayer's federal rights, privileges, or immunities, will not sustain an appeal. . . ."Charleston Federal Savings & Loan Ass'n v. Alderson, 324 U. S. 182, 324 U. S. 185 (1945). [Footnote 4] The appeal is therefore dismissed. While the case is not properly here by appeal, we treat the same as a petition for certiorari under 28 U.S.C. § 2103. [Footnote 5] The petition is granted. On the merits, we conclude that the property involved is not within the waiver provision of the federal Act.The language of § 8 of the Reconstruction Finance Corporation Act was borrowed from earlier federal legislation dealing with federal financial institutions. [Footnote 6] The congressional policy appears to have been to waive tax Page 362 U. S. 631 exemption on real property owned by government corporations whose functions were primarily financial in nature. Originally conceived for the purpose of making loans to distressed business concerns, the Reconstruction Finance Corporation was in this category. Apparently Congress was concerned that property obtained by the Corporation through its financial operations in aid of economic recovery policies would lose its taxable status. Through § 8, therefore, Congress preserved the right of state and local governmental bodies to tax property even though it came into the hands of the Corporation. Success crowned the economic efforts of the Corporation, and, as the country approached the critical period immediately preceding its entry into World War II, Congress, in 1940, extended the Corporation's functions to include the stockpiling of critical supplies and the operation of plants engaged in the manufacture of war material. 54 Stat. 573. It was soon apparent that large tracts of land would be necessary in this operation, and the waiver was extended to the real estate holdings of the Defense Plant Corporation, a subsidiary of the Reconstruction Finance Corporation. 55 Stat. 248.The termination of the war quickly threw substantial portions of such property into disuse, there being no further need for the mass production of war material. The President created the War Assets Administration for the purpose of disposing of all government surplus property. [Footnote 7] After March 25, 1946, government agencies possessing property surplus to official needs were required so to declare it and to transfer it to the Administration for disposal. [Footnote 8] By declaration of May 29, 1946, the Reconstruction Finance Corporation declared the subject property to be surplus to its needs and responsibilities. Under Page 362 U. S. 632 the Surplus Property Act, this declaration transferred [Footnote 9] to the War Assets Administration the functions of: caring for and handling the property pending disposal (§ 3(g) and § 6); making disposition of the property on such terms as it saw fit (§ 9(b) and § 15(a)), including donation under certain conditions (§ 13(b)); and the power of execution and delivery of all necessary papers incident to transfer of title (§ 15(b)). It further provided that all funds derived from such disposition would be covered into the United States Treasury as miscellaneous receipts (§ 30(a)). Pursuant to this declaration by the Reconstruction Finance Corporation, the War Assets Administration took possession of this property on May 29, 1946, and its successor, the General Services Administration, [Footnote 10] retained possession until September 1, 1949, during which period the property was used as a storage depot and a sales center for surplus property held by the Administration. On the latter date, the property was leased to appellant's predecessor. The lease described the lessor as the"Reconstruction Finance Corporation . . . and the United States of America, both acting by and through the General Services Administrator under . . . the Surplus Property Act of 1944."Appellees assessed ad valorem real property taxes on the realty against the Reconstruction Finance Corporation, as owner, for the fiscal tax years 1951 to 1955, inclusive. Appellant paid the taxes [Footnote 11] and filed this suit after claims for refund had been denied. The trial court Page 362 U. S. 633 entered judgment against appellant. On appeal, the Supreme Court of California affirmed the judgment of the trial court, and denied the claim for refund. 51 Cal. 2d 759, 336 P.2d 521, 523.There would be no question as to the exemption of the real property involved had the record title been in the name of the United States. Since March 17, 1955, in fact, it has been so recorded; on that date, the Reconstruction Finance Corporation executed and recorded a quit-claim deed to the United States.The Supreme Court of California correctly posed as the underlying question, "whether the land ceased to be real property of the' Reconstruction Finance Corporation" after it was declared surplus and became subject to the provisions of the Surplus Property Act of 1944. That court found that, since no deed was executed transferring title out of the Reconstruction Finance Corporation until 1955, it remained "property of the . . . Corporation," and hence subject to taxation until that time. We believe the court placed too much reliance on the fact that the bare record title to the property remained in the name of the Corporation.It appears to us that the purpose of the waiver provision was to permit taxation of real property being used by the Reconstruction Finance Corporation in the performance of its functions. Such use was terminated when the property was declared surplus in 1946. At that time, another agency of the Government took both the occupancy and complete control of the property for the purpose of management and disposition. The Reconstruction Finance Corporation, under the specific provisions of the Surplus Property Act, thereby lost all power and control over the property, which came into the hands of the Administrator for the account of the United States, any proceeds therefrom being ordered paid into the United States Treasury. Thereafter, the Administrator elected, Page 362 U. S. 634 as he had the statutory power to do, to lease the property to appellant's predecessor. The real property, however, remained in the account of the United States, not the Reconstruction Finance Corporation. As the Supreme Court of California recognized, the general rule is "that lands owned by the United States of America or its instrumentalities are immune from state and local taxation." We think that the land here was "owned" by the United States.We believe that California overlooks the fact that, while the 1949 lease was formally made in the name of both the United States and the Reconstruction Finance Corporation, as lessors, it recited on its face that the property was "surplus property of the Government of the United States," and subject to the Surplus Property Act of 1944. Furthermore, this lease noted that the property had "been assigned to War Assets Administration for disposal," and that"the Department of Air Force has determined that the use of the leased premises by the Lessee herein is necessary for the production of military equipment for the National Defense."Moreover, the property had been occupied by the War Assets Administration during the two years immediately preceding its lease. The appellees' contention seems to be that, since the lease was in the name of the Reconstruction Finance Corporation as well as the United States, the land was "property of the Corporation." We hardly think such a conclusion inevitable. We believe that the appropriate test would turn on practical ownership of the property, rather than the naked legal title. This is the more necessary with respect to public property, where the record title may often be in a government agency or department -- or, for that matter, in an official of the Government -- rather than in the name of the United States. Here, the Reconstruction Finance Corporation had no proprietary interest in the property, no possession or control thereof, was performing none of Page 362 U. S. 635 its functions with regard thereto, and could receive none of the income or future benefits therefrom. Even though it held the record title, such holding, under the circumstances here, could be only for the benefit of the United States. All of the incidents of beneficial ownership ended by the express mandate of the statute when the property was declared surplus and transferred to another agency for disposition.When confronted with the same issue as presented by the instant case, the Court of Claims reached a conclusion directly contrary to that of the Supreme Court of California. Board of County Comm'rs of Sedgwick County v. United States, 123 Ct.Cl. 304, 105 F. Supp. 995. The Court of Claims there noted that, after the declaration of surplus, the Reconstruction Finance Corporation had no "physical possession, control, or custody of the property. It had neither the use nor the right to use the property." The court went on to conclude that "[t]here is no indication that Congress intended to waive immunity from taxation under these circumstances." 123 Ct.Cl. at 324, 105 F. Supp. at 1001. We agree with the Court of Claims"that the cloak of immunity descended upon the property [when it was declared surplus], and no tax liability for the property could arise thereafter."123 Ct.Cl. at 324, 105 F. Supp. at 1002.Since the crucial element is the intent of Congress, it is important to note the enactment of a 1955 statute providing the States relief from the effects of federal immunity. 40 U.S.C. §§ 521-524. The congressional declaration of purpose in that statute"recognizes that the transfer of real property having a taxable status from the Reconstruction Finance Corporation . . . to another Government department has often operated to remove such property from the tax rolls. . . .""Transfer" was defined to include "a transfer of custody and control of, or accountability for the care and handling of," the property, Page 362 U. S. 636 as well as "transfer of legal title." The statute goes on to provide for certain payments in lieu of taxes where such a transfer occurs. The relevance of this statute lies in a congressional sanction of the rule of the Sedgwick County case, construing the waiver provision.We cannot say that Congress, in 1932, intended to waive the tax exemption on "real property of the Corporation" after the Corporation found the property surplus to its needs and responsibilities and transferred it to another agency, for management and disposition as United States property. To say that the Government's land remained taxable merely because no formal deed was executed transferring title, either to itself or any of its designated agencies, would but make a local tollgate of a technicality.Nor can we agree that the short administrative practice claimed here continued the waiver in effect. Even if the responsible agency had permitted the paper title to the Government's property to remain in the Reconstruction Finance Corporation for the sole purpose of allowing it to be taxed, the congressional mandate in the Surplus Property Act of 1944 could not be overridden. As to such matters, any adjustments between the federal and the local governments are strictly legislative ones for the Congress, United States v. City of Detroit, 355 U. S. 466, 355 U. S. 474 (1958), and not within the discretion of the executive agencies.The judgment is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtRohr Aircraft Corp. v. County of San Diego, 362 U.S. 628 (1960)Rohr Aircraft Corp. v. County of San DiegoNo. 295Argued March 30, 1960Decided May 23, 1960362 U.S. 628Syllabus1. In this case, in which a taxpayer did not explicitly challenge a state tax statute as being repugnant to the Federal Constitution, treaties or statutes, but challenged a local tax assessment on the ground that it infringed the taxpayer's federal rights, privileges or immunities, this Court did not have jurisdiction under 28 U.S.C. § 1257 of an appeal from a decision of a state Supreme Court sustaining the validity of the tax; but the appeal was treated under 28 U.S.C. § 2103 as a petition for certiorari, and certiorari was granted. Pp. 362 U. S. 629-630.2. Certain real estate owned by the Reconstruction Finance Corporation and subjected by § 8 of the Reconstruction Finance Corporation Act to state and local taxation was declared surplus and surrendered to the War Assets Administration for disposal under the provisions of the Surplus Property Act of 1944, which, inter alia, authorized the War Assets Administration and its successor, the General Services Administration, to make disposition of the property on such terms as it saw fit and to execute and deliver all necessary papers incident to transfer of title.Held: even before execution of a quitclaim deed transferring title from the Reconstruction Finance Corporation to the United States, such real estate had ceased to be subject to state and local taxation as "real property of the Reconstruction Finance Corporation," even though the property was leased to a private lessee in the name of both the Reconstruction Finance Corporation and the United States. Pp. 362 U. S. 630-636.51 Cal. 2d 759, 336 P.2d 521, reversed. Page 362 U. S. 629

1972_71-1545

MR. JUSTICE BRENNAN delivered the opinion of the Court.The Judicial Officer of the Department of Agriculture, acting for the Secretary of Agriculture, found that respondent, a registrant under the Packers and Stockyards Act, 1921, 42 Stat. 159, 7 U.S.C. § 181 et seq., willfully violated §§ 307(a) and 312(a) of the Act, 7 U.S.C. §§ 208(a) and 213(a), by incorrect weighing of livestock, and also breached § 401, 7 U.S.C. § 221, by entries of false weights. An order was entered directing that respondent cease and desist from the violations and keep correct accounts, and also suspending respondent as a registrant under the Act for 20 days. Upon review of the decision and order, the Court of Appeals for the Eighth Circuit upheld, as supported by substantial evidence, the findings that respondent violated the Act by short-weighting cattle, and also sustained the cease and desist order and the order to keep correct accounts. The Court of Appeals, however, set aside the 20-day suspension. 454 F.2d 109 (1972). We granted certiorari to consider whether, in doing so, the Court of Appeals exceeded the scope of proper judicial review of administrative sanctions. 409 U.S. 947 (1972). We conclude that the setting aside of the suspension was an impermissible judicial intrusion into the administrative domain under the circumstances of this case, and reverse.Respondent operates a stockyard in Pine Bluff, Arkansas. As a registered "market agency" under § 303 of the Act, 7 U.S.C. § 203, respondent is authorized to sell consigned livestock on commission, subject to the regulatory provisions of the Act and the Secretary's implementing regulations. [Footnote 1] Investigations of respondent's operations Page 411 U. S. 184 in 1964, 1966, and 1967 uncovered instances of underweighing of consigned livestock. Respondent was informally warned to correct the situation, but when a 1969 investigation revealed more underweighing, the present proceeding was instituted by the Administrator of the Packers and Stockyards Administration.Following a hearing and the submission of briefs, the Department of Agriculture hearing examiner found that respondent had"intentionally weighed the livestock at less than their true weights, issued scale tickets and accountings to the consignors on the basis of the false weights, and paid the consignors on the basis of the false weights. [Footnote 2]"The hearing examiner recommended, in addition to a cease and desist order and an order to keep correct records, a 30-day suspension of respondent's registration under the Act.The matter was then referred to the Judicial Officer. After hearing oral argument, the Judicial Officer filed a decision and order accepting the hearing examiner's findings and adopting his recommendations of a cease and desist order and an order to keep correct records. The recommended suspension was also imposed, but was reduced to 20 days. The Judicial Officer stated:"It is not a pleasant task to impose sanctions, but, in view of the previous warnings given respondent, we conclude that we should not only issue a cease and desist order, but also a suspension of respondent Page 411 U. S. 185 as a registrant under the act, but for a lesser period than recommended by complainant and the hearing examiner."30 Agri.Dec. 179, 186 (1971).The Court of Appeals agreed that 7 U.S.C. § 204 authorized the Secretary to suspend "any registrant found in violation of the Act," 454 F.2d at 113, that the suspension procedure here satisfied the relevant requirements of the Administrative Procedure Act, 5 U.S.C. § 558, and that"the evidence indicates that [respondent] acted with careless disregard of the statutory requirements and thus meets the test of 'willfulness.'"454 F.2d at 115. The court nevertheless concluded that the suspension order was "unconscionable" under the circumstances of this case. The court gave two reasons. The first, relying on four previous suspension decisions, was that the Secretary's practice was not to impose suspensions for negligent or careless violations, but only for violations found to be "intentional and flagrant," and therefore that the suspension in respondent's case was contrary to a policy of "achiev[ing] . . . uniformity of sanctions for similar violations.'" The second reason given was that"[t]he cease and desist order coupled with the damaging publicity surrounding these proceedings would certainly seem appropriate and reasonable with respect to the practice the Department seeks to eliminate."Id. at 114, 115.The applicable standard of judicial review in such cases required review of the Secretary's order according to the"fundamental principle . . . that, where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy 'the relation of remedy to policy is peculiarly a matter for administrative competence.'"American Power Co. v. SEC, 329 U. S. 90, 329 U. S. 112 (1946). Thus, the Secretary's choice of sanction was not to be overturned unless the Court of Appeals might find it "unwarranted Page 411 U. S. 186 in law or . . . without justification in fact,. . . ." Id. at 329 U. S. 112-113; Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 313 U. S. 194 (1941); Moog Industries, Inc. v. FTC, 355 U. S. 411, 365 U. S. 413-414 (1958); FTC v. Universal-Rundle Corp., 387 U. S. 244, 387 U. S. 250 (1967); 4 K. Davis, Administrative Law § 30.10, pp. 250-251 (1958). The Court of Appeals acknowledged this definition of the permissible scope of judicial review, [Footnote 3] but apparently regarded respondent's suspension as "unwarranted in law" or "without justification in fact." We cannot agree that the Secretary's action can be faulted in either respect on this record. We read the Court of Appeals' opinion to suggest that the sanction was "unwarranted in law" because "uniformity of sanctions for similar violations" is somehow mandated by the Act. We search in vain for that requirement in the statute. [Footnote 4] The Secretary may suspend Page 411 U. S. 187 "for a reasonable specified period" any registrant who has violated any provision of the Act. 7 U.S.C. § 204. Nothing whatever in that provision confines its application to cases of "intentional and flagrant conduct" or denies its application in cases of negligent or careless violations. Rather, the breadth of the grant of authority to impose the sanction strongly implies a congressional purpose to permit the Secretary to impose it to deter repeated violations of the Act, whether intentional or negligent. Hyatt v. United States, 276 F.2d 308, 313 (CA10 1960); G. H. Miller & Co. v. United States, 260 F.2d 286 (CA7 1958); In re Silver, 21 Agri.Dec. 1438, 1452 (1962). [Footnote 5] The employment of a sanction within the authority of an administrative agency is thus not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases. FCC v. WOKO, 329 U. S. 223, 329 U. S. 227-228 (1946); FTC v. Universal-Rundle Corp., 387 U.S. at 387 U. S. 250, 251; G. H. Miller & Co. v. United States, supra, at 296; Hiller v. SEC, 429 F.2d 856, 858-859 (CA2 1970); Dlugash v. SEC, 373 F.2d 107, 110 (CA2 1967); Kent v. Hardin, 425 F.2d 1346, 1349 (CA5 1970).Moreover, the Court of Appeals may have been in error in acting on the premise that the Secretary's practice was to impose suspensions only in cases of "intentional and flagrant conduct." [Footnote 6] The Secretary's practice, rather, apparently is to employ that sanction as, in his judgment, Page 411 U. S. 188 best serves to deter violations and achieve the objectives of that statute. Congress plainly intended in its broad grant to give the Secretary that breadth of discretion. Therefore, mere unevenness in the application of the sanction does not render its application in a particular case "unwarranted in law."Nor can we perceive any basis on this record for a conclusion that the suspension of respondent was so "without justification in fact . . . as to constitute an abuse of [the Secretary's] discretion." American Power Co. v. SEC, 329 U.S. at 329 U. S. 11; Moog Industries, Inc. v. FTC, 355 U.S. at 355 U. S. 414; Barsky v. Board of Regents, 347 U. S. 442, 347 U. S. 455 (1954). The Judicial Officer rested the suspension on his view of its necessity in light of respondent's disregard of previous warnings. The facts found concerning the previous warnings and respondent's disregard of these warnings were sustained by the Court of Appeals as based on ample evidence. In that circumstance, the overturning of the suspension authorized by the statute was an impermissible intrusion into the administrative domain.Similarly, insofar as the Court of Appeals rested its action on its view that, in light of damaging publicity about the charges, the cease and desist order sufficiently redressed respondent's violations, the court clearly exceeded its function of judicial review. The fashioning of an appropriate and reasonable remedy is for the Page 411 U. S. 189 Secretary, not the court. The court may decide only whether, under the pertinent statute and relevant facts, the Secretary made "an allowable judgment in [his] choice of the remedy." Jacob Siegel Co. v. FTC, 327 U. S. 608, 327 U. S. 612 (1946).Reversed

U.S. Supreme CourtButz v. Glover Livestock Commission Co., Inc., 411 U.S. 182 (1973)Butz v. Glover Livestock Commission Co., Inc.No. 71-1545Argued February 27, 1973Decided March 28, 1973411 U.S. 182SyllabusRespondent stockyard operator, who, after a hearing, had been found to have short-weighted livestock and underpaid consignors on the basis of the false weights, was ordered by a Judicial Officer acting for the Secretary of Agriculture to cease and desist and to keep correct records, and its registration under the Packers and Stockyards Act was suspended for 20 days. The Court of Appeals upheld all but the suspension, which it found inappropriate in view of the other sanctions, and contrary to the Secretary's practice except for "intentional and flagrant" violations.Held: In setting aside the suspension order, the Court of Appeals exceeded the scope of proper judicial review of administrative sanctions, since the Secretary had full authority to make the suspension order as a deterrent to violations, whether intentional or negligent, and issuance of the order against respondent, who had ignored previous warnings against short-weighting, was not an abuse of administrative discretion. Pp. 185-189.454 F.2d 109, reversed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 411 U. S. 189. Page 411 U. S. 183

1971_71-16

MR. JUSTICE BLACKMUN delivered the opinion of the Court.The appellees have framed the issue here as follows:"Does appellants' action in refusing to allow an alien scholar to enter the country to attend academic meetings violate the First Amendment rights of American scholars and students who had invited him? [Footnote 1]"Expressed in statutory terms, the question is whether §§ 212(a)(28)(D) and (G)(v) and § 212(d)(3)(A) of the Immigration and Nationality Act of 1952, 66 Stat. 182, 8 U.S.C. §§ 1182(a)(28)(D) and (G)(v) and § 1182(d)(3)(A), providing that certain aliens "shall be ineligible to receive visas and shall be excluded from admission into the United States" unless the Attorney General, in his discretion, upon recommendation by the Secretary of State or a consular officer, waives inadmissibility and approves temporary admission, are unconstitutional as applied here in that they deprive American citizens of freedom of speech guaranteed by the First Amendment. Page 408 U. S. 755The challenged provisions of the statute are:"Section 212(a). Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:""* * * *" "(28) Aliens who are, or at any time have been, members of any of the following classes: ""* * * *" "(D) Aliens not within any of the other provisions of this paragraph who advocate the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship. . . .""* * * *" "(G) Aliens who write or publish . . . (v) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship; . . .""(d)""* * * *" "(3) Except as provided in this subsection, an alien(A) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under one or more of the paragraphs enumerated in subsection (a) . . . may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. . . ."Section 212(d)(6) provides that the Attorney Generalshall make a detailed report to the Congress in any Page 408 U. S. 756 case in which he exercises his authority under paragraph (3) of this subjection on behalf of any alien excludable under paragraphs (9), (10), and (28). . . .IErnest E. Mandel resides in Brussels, Belgium, and is a Belgian citizen. He is a professional journalist and is editor-in-chief of the Belgian Left Socialist weekly La Gauche. He is author of a two-volume work entitled Marxist Economic Theory published in 1969. He asserted in his visa applications that he is not a member of the Communist Party. He has described himself, however, as "a revolutionary Marxist." [Footnote 2] He does not dispute, see 325 F. Supp. 620, 624, that he advocates the economic, governmental, and international doctrines of world communism. [Footnote 3]Mandel was admitted to the United States temporarily in 1962 and again in 1968. On the first visit, he came as a working journalist. On the second, he accepted invitations to speak at a number of universities and colleges. On each occasion, although apparently he was not then aware of it, his admission followed a finding of ineligibility under § 212(a)(28), and the Attorney General's exercise of discretion to admit him temporarily, on recommendation of the Secretary of State, as § 212(d)(3)(A) permits.On September 8, 1969, Mandel applied to the American Consul in Brussels for a nonimmigrant visa to enter the United States in October for a six-day period, during which he would participate in a conference on Page 408 U. S. 757 Technology and the Third World at Stanford University. [Footnote 4] He had been invited to Stanford by the Graduate Student Association there. The invitation stated that John Kenneth Galbraith would present the keynote address and that Mandel would be expected to participate in an ensuing panel discussion and to give a major address the following day. The University, through the office of its president, "heartily endorse[d]" the invitation. When Mandel's intended visit became known, additional invitations for lectures and conference participations came to him from members of the faculties at Princeton, Amherst, Columbia, and Vassar, from groups in Cambridge, Massachusetts, and New York City, and from others. One conference, to be in New York City, was sponsored jointly by the Bertrand Russell Peace Foundation and the Socialist Scholars Conference; Mandel's assigned subject there was "Revolutionary Strategy in Imperialist Countries." Mandel then filed a second visa application proposing a more extensive itinerary and a stay of greater duration.On October 23 the Consul at Brussels informed Mandel orally that his application of September 8 had been refused. This was confirmed in writing on October 30. The Consul's letter advised him of the finding of inadmissibility under § 212(a)(28) in 1962, the waivers in that year and in 1968, and the current denial of a waiver. It said, however, that another request for waiver was being forwarded to Washington in connection with Mandel's second application for a visa. The Department of State, by a letter dated November 6 Page 408 U. S. 758 from its Bureau of Security and Consular Affairs to Mandel's New York attorney, asserted that the earlier waivers had been granted on condition that Mandel conform to his itinerary and limit his activities to the stated purposes of his trip, but that, on his 1968 visit, he had engaged in activities beyond the stated purposes. [Footnote 5] For this reason, it was said, a waiver "was Page 408 U. S. 759 not sought in connection with his September visa application." The Department went on to say, however, that it had now learned that Mandel might not have been aware in 1968 of the conditions and limitations attached to his visa issuance, and that, in view of this and upon his assurances that he would conform to his stated itinerary and purposes, the Department was reconsidering his case. On December 1, the Consul at Brussels informed Mandel that his visa had been refused.The Department of State in fact, had recommended to the Attorney General that Mandel's ineligibility be waived with respect to his October visa application. The Immigration and Naturalization Service, however, acting on behalf of the Attorney General, see 28 U.S.C. § 510, in a letter dated February 13, 1970, to New York counsel stated that it had determined that Mandel's 1968 activities while in the United States"went far beyond the stated purposes of his trip, on the basis of which his admission had been authorized and represented a flagrant abuse of the opportunities afforded him to express his views in this country."The letter concluded that favorable exercise of discretion, provided for under the Act, was not warranted and that Mandel's temporary admission was not authorized.Mandel's address to the New York meeting was then delivered by transatlantic telephone.In March, Mandel and six of the other appellees instituted the present action against the Attorney General and the Secretary of State. The two remaining appellees soon came into the lawsuit by an amendment to the complaint. All the appellees who joined Mandel in this action are United States citizens and are university professors in various fields of the social sciences. They are persons who invited Mandel to speak at universities and other forums in the United States or who expected to participate in colloquia with him so that, Page 408 U. S. 760 as the complaint alleged, "they may hear his views and engage him in a free and open academic exchange."Plaintiff appellees claim that the statute are unconstitutional on their face and as applied in that they deprive the American plaintiffs of their First and Fifth Amendment rights. Specifically, these plaintiffs claim that the statutes prevent them from hearing and meeting with Mandel in person for discussions, in contravention of the First Amendment; that § 212(a)(28) denies them equal protection by permitting entry of "rightists," but not "leftists," and that the same section deprives them of procedural due process; that § 212(d)(3)(A) is an unconstitutional delegation of congressional power to the Attorney General because of its broad terms, lack of standards, and lack of prescribed procedures; and that application of the statutes to Mandel was "arbitrary and capricious" because there was no basis in fact for concluding that he was ineligible, and no rational reason or basis in fact, for denying him a waiver once he was determined ineligible. Declaratory and injunctive relief was sought.A three-judge district court was duly convened. The case was tried on the pleadings and affidavits with exhibits. Two judges held that, although Mandel had no personal right to enter the United States, citizens of this country have a First Amendment right to have him enter and to hear him explain and seek to defend his views. The court then entered a declaratory judgment that § 212(a)(28) and § 212(d)(3)(A) were invalid and void insofar a they had been or might be invoked by the defendants to find Mandel ineligible for admission. The defendants were enjoined from implementing and enforcing those statutes so as to deny Mandel admission as a nonimmigrant visitor. 325 F. Supp. 620 (EDNY 1971). Judge Bartels dissented. Id. at 637. Probable jurisdiction was noted. 404 U.S. 1013 (1972). Page 408 U. S. 761Until 1875, alien migration to the United States was unrestricted. The Act of March 3, 1875, 18 Stat. 477, barred convicts and prostitutes. Seven years later, Congress passed the first general immigration statute. Act of Aug. 3 1882, 22 Stat. 214. Other legislation followed. A general revision of the immigration laws was effected by the Act of Mar. 3, 1903, 32 Stat. 1213. Section 2 of that Act made ineligible for admission"anarchists, or persons who believe in or advocate the overthrow by force or violence of the Government of the United States or of all government or of all forms of law."By the Act of Oct. 16, 1918, 40 Stat. 1012, Congress expanded the provisions for the exclusion of subversive aliens. Title II of the Alien Registration Act of 1940, 54 Stat. 671, amended the 1918 Act to bar aliens who, at any time, had advocated or were members of or affiliated with organizations that advocated violent overthrow of the United States Government.In the years that followed, after extensive investigation and numerous reports by congressional committees, see Communist Party v. Subversive Activities Control Board, 367 U. S. 1, 367 U. S. 94 n. 37 (1961), Congress passed the Internal Security Act of 1950, 64 Stat. 987. This Act dispensed with the requirement of the 1940 Act of a finding in each case, with respect to members of the Communist Party, that the party did, in fact, advocate violent overthrow of the Government. These provisions were carried forward into the Immigration and Nationality Act of 1952.We thus have almost continuous attention on the part of Congress since 1875 to the problems of immigration and of excludability of certain defined classes of aliens. The pattern generally has been one of increasing Page 408 U. S. 762 control, with particular attention, for almost 70 years now, first to anarchists and then to those with communist affiliation or views.IIIIt is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. United States ex rel. Turner v. Williams, 194 U. S. 279, 194 U. S. 292 (1904); United States ex rel . Knauff v. Shaughnessy, 338 U. S. 537, 338 U. S. 542 (1950); Galvan v. Press, 347 U. S. 522, 347 U. S. 530-532 (194); see Harisiades v. Shaughnessy, 342 U. S. 580, 342 U. S. 592 (1952).The appellees concede this. Brief for Appellees 33; Tr. of Oral Arg. 28. Indeed, the American appellees assert that "they sue to enforce their rights, individually and as members of the American public, and assert none on the part of the invited alien." Brief for Appellees 14. "Dr. Mandel is, in a sense, made a plaintiff because he is symbolic of the problem." Tr. of Oral Arg. 22.The case, therefore, comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country, or, in other words, to compel the Attorney General to allow Mandel's admission.IVIn a variety of contexts, this Court has referred to a First Amendment right to "receive information and ideas":"It is now well established that the Constitution protects the right to receive information and ideas. 'This freedom [of speech and press] . . . necessarily Page 408 U. S. 763 protects the right to receive. . . .' Martin v. City of Struthers, 319 U. S. 141, 319 U. S. 143 (1943). . . ."Stanley v. Georgia, 394 U. S. 557, 394 U. S. 564 (1969).This was one basis for the decision in Thomas v. Collins, 323 U. S. 516 (1945). The Court there held that a labor organizer's right to speak and the rights of workers "to hear what he had to say," id. at 323 U. S. 534, were both abridged by a state law requiring organizers to register before soliciting union membership. In a very different situation, MR. JUSTICE WHITE, speaking for a unanimous Court upholding the FCC's "fairness doctrine" in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 386-390 (1969), said:"It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC."Id. at 395 U. S. 390. And in Lamont v. Postmaster General, 381 U. S. 301 (1965), the Court held that a statute permitting the Government to hold "communist political propaganda" arriving in the mails from abroad unless the addressee affirmatively requested in writing that it be delivered to him placed an unjustifiable burden on the addressee's First Amendment right. This Court has recognized that this right is "nowhere more vital" than in our schools and universities. Shelton v. Tucker, 364 U. S. 479, 364 U. S. 487 (1960); Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 250 (1957) (plurality opinion); Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 603 (1967). See Epperson v. Arkansas, 393 U. S. 97 (1968). Page 408 U. S. 764In the present case, the District Court majority held:"The concern of the First Amendment is not with a nonresident alien's individual and personal interest in entering and being heard, but with the right of the citizens of the country to have the alien enter and to hear him explain and seek to defend his views; that, as Garrison [v. Louisiana, 379 U. S. 64 (1964),] and Red Lion observe, is of the essence of self-government."325 F. Supp. at 631. The Government disputes this conclusion on two grounds. First, it argue that exclusion of Mandel involves no restriction on First Amendment rights at all, since what is restricted is "only action -- the action of the alien in coming into this country." Brief for Appellants 29. Principal reliance is placed on Zemel v. Rusk, 381 U. S. 1 (1965), where the Government's refusal to validate an American passport for travel to Cuba was upheld. The rights asserted there were those of the passport applicant himself. The Court held that his right to travel and his asserted ancillary right to inform himself about Cuba did not outweigh substantial "foreign policy considerations affecting all citizens" that, with the backdrop of the Cuban missile crisis, were characterized as the "weightiest considerations of national security." Id. at 381 U. S. 13, 381 U. S. 16. The rights asserted here, in some contrast, are those of American academics who have invited Mandel to participate with them in colloquia, debates, and discussion in the United States. In light of the Court's previous decisions concerning the "right to receive information," we cannot realistically say that the problem facing us disappears entirely or is nonexistent because the mode of regulation bears directly on physical movement. In Thomas, the registration requirement, on its Page 408 U. S. 765 face, concerned only action. In Lamont, too, the face of the regulation dealt only with the Government's undisputed power to control physical entry of mail into the country. See United States v. Robel, 389 U. S. 258, 389 U. S. 263 (1967).The Government also suggests that the First Amendment is inapplicable because appellees have free access to Mandel's ideas through his books and speeches, and because "technological developments," such as tapes or telephone hook-ups, readily supplant his physical presence. This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning. While alternative means of access to Mandel's ideas might be a relevant factor were we called upon to balance First Amendment rights against governmental regulatory interests -- a balance we find unnecessary here in light of the discussion that follows in Part V -- we are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access.VRecognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case, 130 U. S. 581, 130 U. S. 609 (1889), and in Fong Yue Ting v. United States, 149 U. S. 698 (1893), held broadly, as the Government describes it, Brief for Appellants 20, that the power to exclude aliens is"inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers -- a power to be exercised exclusively by the political branches of government. . . ."Since that time, the Court's general reaffirmations of this principle have Page 408 U. S. 766 been legion. [Footnote 6] The Court, without exception, has sustained Congress' "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden." Boutilier v. Immigration and Naturalization Service, 387 U. S. 118, 387 U. S. 123 (1967). "[O]ver no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U. S. 320, 214 U. S. 339 (1909). In Lem Moon Sing v. United States, 158 U. S. 538, 158 U. S. 547 (1895), the first Mr. Justice Harlan said:"The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications."Mr. Justice Frankfurter ably articulated this history in Galvan v. Press, 347 U. S. 522 (1954), a deportation case, and we can do no better. After suggesting, at 347 U. S. 530, that "much could be said for the view" that due process places some limitations on congressional power in this area "were we writing on a clean slate," he continued:"But the slate is not clean. As to the extent of the power of Congress under review, there is not merely 'a page of history'. . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with Page 408 U. S. 767 the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. . . .""We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens. . . ."Id. at 347 U. S. 531-532.We are not inclined in the present context to reconsider this line of cases. Indeed, the appellees, in contrast to the amicus, do not ask that we do so. The appellees recognize the force of these many precedents. In seeking to sustain the decision below, they concede that Congress could enact a blanket prohibition against entry of all aliens falling into the class defined by §§ 212(a)(28)(D) and (G)(v), and that First Amendment rights could not override that decision. Brief for Appellees 16. But they contend that, by providing a waiver procedure, Congress clearly intended that persons ineligible under the broad provision of the section would be temporarily admitted when appropriate "for humane reasons and for reasons of public interest." S.Rep. No. 1137, 82d Cong., 2d Sess., 12 (1952). They argue that the Executive's implementation of this congressional mandate through decision whether to grant a waiver in each individual case must be limited by the First Amendment rights of persons like appellees. Specifically, their position is that the First Amendment rights must prevail, at least where the Government Page 408 U. S. 768 advances no justification for failing to grant a waiver. They point to the fact that waivers have been granted in the vast majority of cases. [Footnote 7]Appellees' First Amendment argument would prove too much. In almost every instance of an alien excludable under § 212(a)(28), there are probably those who would wish to meet and speak with him. The ideas of most such aliens might not be so influential as those of Mandel, nor his American audience so numerous, nor the planned discussion forums so impressive. But the First Amendment does not protect only the articulate, the well known, and the popular. Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever a bona fide claim is made that American citizens wish to meet and talk with an alien excludable under § 212(a)(28), one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted the Executive becomes a nullity, or Page 408 U. S. 769 courts in each case would be required to weigh the strength of the audience's interest against that of the Government in refusing a waiver to the particular alien applicant, according to some as yet undetermined standard. The dangers and the undesirability of making that determination on the basis of factors such as the size of the audience or the probity of the speaker's ideas are obvious. Indeed, it is for precisely this reason that the waiver decision has, properly, been placed in the hands of the Executive.Appellees seek to soften the impact of this analysis by arguing, as has been noted, that the First Amendment claim should prevail, at least where no justification is advanced for denial of a waiver. Brief for Appellees 26. The government would have us reach this question, urging a broad decision that Congress has delegated the waiver decision to the Executive in its sole and unfettered discretion, and any reason or no reason may be given. See Jay v. Boyd, 351 U. S. 345, 351 U. S. 357-358 (1956); Hintopoulos v. Shaughnessy, 353 U. S. 72, 353 U. S. 77 (1957); Kimm v. Rosenberg, 363 U. S. 405, 363 U. S. 408 (1960). This record, however, does not require that we do so, for the Attorney General did inform Mandel's counsel of the reason for refusing him a waiver. And that reason was facially legitimate and bona fide.The Government has chosen not to rely on the letter to counsel either in the District Court or here. The fact remains, however, that the official empowered to make the decision stated that he denied a waiver because he concluded that previous abuses by Mandel made it inappropriate to grant a waiver again. With this, we think the Attorney General validly exercised the plenary power that Congress delegated to the Executive by §§ 212(a)(28) and (d)(3).In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been Page 408 U. S. 770 firmly established. In the case of an alien excludable under § 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that, when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.Reversed

U.S. Supreme CourtKleindienst v. Mandel, 408 U.S. 753 (1972)Kleindienst v. MandelNo. 71-16Argued April 18, 1972Decided June 29, 1972408 U.S. 753SyllabusThis action was brought to compel the Attorney General to grant a temporary nonimmigrant visa to a Belgian journalist and Marxian theoretician whom the American plaintiff appellees had invited to participate in academic conferences and discussions in this country. The alien had been found ineligible for admission under §§ 212(a)(28)(D) and (G)(v) of the Immigration and Nationality Act of 1952, barring those who advocate or publish "the economic, international, and governmental doctrines of world communism." The Attorney General had declined to waive ineligibility as he has the power to do under § 212(d) of the Act, basing his decision on unscheduled activities engaged in by the alien on a previous visit to the United States, when a waiver was granted. A three-judge District Court, although holding that the alien had no personal entry right, concluded that citizens of this country had a First Amendment right to have him enter and to hear him, and enjoined enforcement of § 212 as to this alien.Held: In the exercise of Congress' plenary power to exclude aliens or prescribe the conditions for their entry into this country, Congress in § 212(a)(28) of the Act has delegated conditional exercise of this power to the Executive Branch. When, as in this case, the Attorney General decides for a legitimate and bona fide reason not to waive the statutory exclusion of an alien, courts will not look behind his decision or weigh it against the First Amendment interests of those who would personally communicate with the alien. Pp. 408 U. S. 761-770.325 F. Supp. 620, reversed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 408 U. S. 770. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 408 U. S. 774. Page 408 U. S. 754

1989_88-1264

JUSTICE KENNEDY delivered the opinion of the Court.The issue before us is whether respondent Robyn Leroy Parks, whose conviction and death sentence became final in Page 494 U. S. 486 1983, is entitled to federal habeas relief. His claim is that an instruction in the penalty phase of his trial, telling the jury to avoid any influence of sympathy, violates the Eighth Amendment. In Penry v. Lynaugh, 492 U. S. 302 (1989), we held that a new rule of constitutional law will not be applied in cases on collateral review unless the rule comes within one of two narrow exceptions. This limitation on the proper exercise of habeas corpus jurisdiction applies to capital and noncapital cases. See id. at 492 U. S. 314. We hold that Parks is not entitled to federal habeas relief. The principle he urges is a new rule within the meaning of Teague v. Lane, 489 U. S. 288 (1989). It is not dictated by our prior cases and, were it to be adopted, it would contravene well-considered precedents. We also hold that the rule petitioner asks us to adopt does not come within either of the two exceptions set forth in Teague.A passing motorist found Abdullah Ibrahim, a native of Bangladesh, dead inside the Oklahoma City gas station where Ibrahim worked. The victim died from a single chest wound inflicted by a .45-caliber pistol. Parks admitted the murder to a friend, and the police obtained tapes of that statement. Parks said that he shot Ibrahim because he was afraid Ibrahim would tell the police that Parks used a stolen credit card to purchase gasoline.In 1978, a jury found Parks guilty of capital murder. During the sentencing phase of the trial, Parks offered as mitigating evidence the testimony of his father, who described Parks' background and character. Parks' counsel relied upon this testimony in his closing argument, arguing that Parks' youth, race, school experiences, and broken home were mitigating factors that the jury should consider in making its sentencing decision. He asked the jury to show "kindness" to Parks in consideration of his background.After instructing the jury that it must consider all of the mitigating circumstances, statutory or nonstatutory, proffered by Parks, and that it could consider any mitigating circumstances Page 494 U. S. 487 that it found from the evidence, the trial court delivered the following instruction:"You are the judges of the facts. The importance and worth of the evidence is for you to determine. You must avoid any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factor when imposing sentence. You should discharge your duties as jurors impartially, conscientiously and faithfully under your oaths and return such verdict as the evidence warrants when measured by these Instructions."App. 13. After finding as an aggravating circumstance that the murder was "committed for the purpose of avoiding or preventing a lawful arrest or prosecution," Okla.Stat., Tit. 21, § 701.12 (1981), the jury sentenced Parks to death.Parks' conviction and sentence were affirmed on direct appeal by the Oklahoma Court of Criminal Appeals, Parks v. State, 651 P.2d 686 (1982), and we denied certiorari, 459 U.S. 1155 (1983). After seeking postconviction relief in the state courts, Parks filed a petition for a writ of habeas corpus in Federal District Court arguing, inter alia, that the antisympathy instruction delivered in the penalty phase violated the Eighth Amendment because it in effect told the jury to disregard the mitigating evidence that Parks had presented. The District Court denied relief, and a divided panel of the Court of Appeals for the Tenth Circuit affirmed. Parks v. Brown, 840 F.2d 1496 (1988). On rehearing, the Tenth Circuit, sitting en banc, reversed, holding that the antisympathy instruction was unconstitutional for the reasons advanced by Parks. Parks v. Brown, 860 F.2d 1545 (1988). We granted certiorari, 490 U.S. 1034 (1989), and now reverse.Parks petitions the federal courts for a writ of habeas corpus. As he is before us on collateral review, we must first determine whether the relief sought would create a new rule under our holdings in Teague v. Lane, supra, at 489 U. S. 299-301, and Penry, supra, at 492 U. S. 313. If so, we will neither announce nor apply the new rule sought by Parks unless it would fall Page 494 U. S. 488 into one of two narrow exceptions. Teague, supra, at 489 U. S. 307; Penry, supra, at 492 U. S. 329.In Teague, we defined a new rule as a rule that "breaks new ground," "imposes a new obligation on the States or the Federal Government," or was not "dictated by precedent existing at the time the defendant's conviction became final." Teague, supra, at 489 U. S. 301 (emphasis in original). The explicit overruling of an earlier holding no doubt creates a new rule; it is more difficult, however, to determine whether we announce a new rule when a decision extends the reasoning of our prior cases. As we recognized in Butler v. McKellar, ante at 494 U. S. 412-414, the question must be answered by reference to the underlying purposes of the habeas writ. Foremost among these is ensuring that state courts conduct criminal proceedings in accordance with the Constitution as interpreted at the time of the proceedings. See id. at 494 U. S. 413."'[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. In order to perform this deterrence function, . . . the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place.'"Teague, supra, at 489 U. S. 306 (quoting Desist v. United States, 394 U. S. 244, 394 U. S. 262-263 (1969) (Harlan, J., dissenting)). See also Solem v. Stumes, 465 U. S. 638, 465 U. S. 653 (1984) (Powell, J., concurring in judgment)."The 'new rule' principle therefore validates reasonable, good faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions."Butler, ante at 494 U. S. 414. Under this functional view of what constitutes a new rule, our task is to determine whether a state court considering Parks' claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule Parks seeks was required by the Constitution.Parks contends that the result he seeks does not involve the creation of a new rule. Relying upon our decisions in Page 494 U. S. 489 Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), both decided before his conviction became final in 1983, and our decision in California v. Brown, 479 U. S. 538 (1987), decided after his conviction became final, Parks argues that the Eighth Amendment, as interpreted in 1983, required, and still requires, that jurors be allowed to base the sentencing decision upon the sympathy they feel for the defendant after hearing his mitigating evidence. We disagree, and conclude that adoption of this principle would create a new rule as defined in Teague and Penry.In Lockett, a plurality of the Court decided that an Ohio death penalty statute that limited the jury's consideration to specified mitigating circumstances violated the constitutional requirement of individualized sentencing in capital cases. See 438 U.S. at 438 U. S. 605. The plurality based its conclusion on the view that"the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."Id. at 438 U. S. 604 (emphasis in original; footnotes omitted).In Eddings, the view adopted by the Lockett plurality ripened into a holding of the Court. We ruled that a sentencing judge's refusal, as a matter of law, to consider mitigating evidence presented by a capital defendant concerning his family history and upbringing was constitutional error. Relying on the plurality opinion in Lockett, the Court reasoned:"Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer . . . may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from Page 494 U. S. 490 their consideration."Eddings, 455 U.S. at 455 U. S. 13-115 (emphasis in original).Review of our decisions in Lockett and Eddings convinces us that the two cases do not dictate the result urged by Parks. There is no dispute as to the precise holding in each of the two cases: that the State cannot bar relevant mitigating evidence from being presented and considered during the penalty phase of a capital trial. These two cases place clear limits on the ability of the State to define the factual bases upon which the capital sentencing decision must be made. Indeed, that is how we have interpreted these decisions in later cases. See Hitchcock v. Dugger, 481 U. S. 393, 481 U. S. 398-399 (1987) (instruction to advisory jury not to consider nonstatutory mitigating circumstances, and refusal by sentencing judge to consider the same); Skipper v. South Carolina, 476 U. S. 1, 476 U. S. 4-5 (1986) (exclusion of evidence regarding defendant's post-offense conduct).Lockett and Eddings do not speak directly, if at all, to the issue presented here: whether the State may instruct the sentencer to render its decision on the evidence without sympathy. Parks asks us to create a rule relating, not to what mitigating evidence the jury must be permitted to consider in making its sentencing decision, but to how it must consider the mitigating evidence. There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making its sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision. We thus cannot say that the large majority of federal and state courts that have rejected challenges to antisympathy instructions similar to that given at Parks' trial have been unreasonable in concluding that the instructions do not violate the rule of Lockett and Eddings. See Byrne v. Butler, 847 F.2d 1135, 1138-1140 (CA5 1988); People v. Emerson, 122 Ill. 2d 411, 442-443, 522 N.E.2d 1109, 1122 (1987), cert. denied, 488 U.S. 900 (1988); State v. Ramseur, 106 N.J. 123, 295-299, Page 494 U. S. 491 524 A.2d 188, 275-277 (1987); State v. Steffen, 31 Ohio St.3d 111, 125, 509 N.E.2d 383, 396 (1987), cert. denied, 485 U. S. 916 (1988); State v. Owens, 293 S.C. 161, 169, 359 S.E.2d 275, 279, cert. denied, 484 U.S. 982 (1987); State v. Porterfield, 746 S.W.2d 441, 450-451 (Tenn.), cert. denied, 486 U.S. 1017 (1988). Even were we to agree with Parks' assertion that our decisions in Lockett and Eddings inform, or even control or govern, the analysis of his claim, it does not follow that they compel the rule that Parks seeks. See Butler, ante at 494 U. S. 414-415.Parks contends that our decision in Penry that the relief sought there did not call for the creation of a new rule compels a similar result in this case. We disagree. In Penry, we held that resolution of a claim that the Texas death penalty scheme prevented the jury from considering and giving effect to certain types of mitigating evidence did not involve the creation of a new rule under Teague. See Penry, 492 U.S. at 492 U. S. 315. To the extent that Penry's claim was that the Texas system prevented the jury from giving any mitigating effect to the evidence of his mental retardation and abuse in childhood, the decision that the claim did not require the creation of a new rule is not surprising. Lockett and Eddings command that the State must allow the jury to give effect to mitigating evidence in making the sentencing decision; Penry's contention was that Texas barred the jury from so acting. Here, by contrast, there is no contention that the State altogether prevented Parks' jury from considering, weighing, and giving effect to all of the mitigating evidence that Parks put before them; rather, Parks' contention is that the State has unconstitutionally limited the manner in which his mitigating evidence may be considered. As we have concluded above, the former contention would come under the rule of Lockett and Eddings; the latter does not.Penry's claim, moreover, did not ask us to apply the reasoning of Lockett and Eddings so much as it required us to apply our decision in Jurek v. Texas, 428 U. S. 262 (1976). Page 494 U. S. 492 Penry interpreted Jurek as holding that the Texas death penalty statute is constitutional so long as it is interpreted by the Texas courts to permit the jury to consider mitigating circumstances proffered by the defendant. See Penry, supra, at 492 U. S. 316. Having thus construed Jurek, we concluded that resolution of Penry's claim that "those assurances were not fulfilled in his particular case," 492 U.S. at 492 U. S. 318 (emphasis in original), did not involve the creation of a new rule:"In our view, the relief Penry seeks does not 'impos[e] a new obligation' on the State of Texas. Rather, Penry simply asks the State to fulfill the assurance upon which Jurek was based: namely, that the special issues would be interpreted broadly enough to permit the sentencer to consider all of the relevant mitigating evidence a defendant might present in imposing sentence."Id. at 492 U. S. 315 (citations omitted). The Penry Court's conclusion that Lockett and Eddings dictated the rule sought by Penry, see 492 U.S. at 492 U. S. 318-319, must be understood in terms of the Court's ruling in Jurek, and its application in later cases. We did not view Lockett and Eddings as creating a rule different from that relied upon in Jurek; rather, we indicated that Lockett and Eddings reaffirmed the reasoning in Jurek, see 492 U.S. at 492 U. S. 317-319, and confirmed the necessity of its application to Penry's claim.We also reject Parks' contention that the antisympathy instruction runs afoul of Lockett and Eddings because jurors who react sympathetically to mitigating evidence may interpret the instruction as barring them from considering that evidence altogether. This argument misapprehends the distinction between allowing the jury to consider mitigating evidence and guiding their consideration. It is no doubt constitutionally permissible, if not constitutionally required, see Gregg v. Georgia, 428 U. S. 153, 428 U. S. 189-195 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.), for the State to insist that"the individualized assessment of the appropriateness of the death penalty [be] a moral inquiry into the culpability Page 494 U. S. 493 of the defendant, and not an emotional response to the mitigating evidence."California v. Brown, 479 U.S. at 479 U. S. 545 (O'CONNOR, J., concurring). Whether a juror feels sympathy for a capital defendant is more likely to depend on that juror's own emotions than on the actual evidence regarding the crime and the defendant. It would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary. See Gregg, supra, at 428 U. S. 189-195; Proffitt v. Florida, 428 U. S. 242, 428 U. S. 252-253 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.); Jurek v. Texas, supra, at 428 U. S. 271-272 (same); Woodson v. North Carolina, 428 U. S. 280, 428 U. S. 303-305 (1976) (plurality opinion); Roberts v. Louisiana, 428 U. S. 325, 428 U. S. 333-335 (1976) (plurality opinion). At the very least, nothing in Lockett and Eddings prevents the State from attempting to ensure reliability and nonarbitrariness by requiring that the jury consider and give effect to the defendant's mitigating evidence in the form of a "reasoned moral response," Brown, 479 U.S. at 479 U. S. 545 (emphasis in original), rather than an emotional one. The State must not cut off full and fair consideration of mitigating evidence; but it need not grant the jury the choice to make the sentencing decision according to its own whims or caprice. See id. at 479 U. S. 541-543.Given the above discussion, it is obvious that our decision in California v. Brown is of no assistance to Parks. In Brown, we held that an instruction telling the jury not to be "swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling'" during the sentencing phase did not violate the Eighth Amendment. See id. at 479 U. S. 542. We reasoned that a reasonable juror would interpret the instruction to ignore mere sympathy "as an admonition to ignore emotional responses that are not rooted in the aggravating and mitigating evidence," and that it was not unconstitutional for a State to "prohibi[t] juries from basing Page 494 U. S. 494 their sentencing decisions on factors not presented at the trial." Id. at 479 U. S. 542-543. Although we approved of the use of the antisympathy instruction given in Brown, Parks attempts to transform our reasoning in that case into a rule that the instruction given in his case violates the Eighth Amendment.Parks' argument relies upon a negative inference: because we concluded in Brown that it was permissible under the Constitution to prevent the jury from considering emotions not based upon the evidence, it follows that the Constitution requires that the jury be allowed to consider and give effect to emotions that are based upon mitigating evidence. For the reasons discussed above, see supra at 494 U. S. 488-491, we doubt that this inference follows from Brown or is consistent with our precedents. The same doubts are shared by the clear majority of federal and state courts that have passed upon the constitutionality of antisympathy instructions after Brown. See supra, at 494 U. S. 490-491. The fact remains, however, that even if we accept Parks' arguments, Brown itself was decided nearly four years after Parks' conviction became final. In order to gain the benefit, if any, of Brown, Parks must establish that the decision in Brown did not create a new rule. To do so, Parks must contend that Lockett and Eddings dictated our reasoning, albeit perhaps not the result, in Brown. Our discussion above makes it evident that they do not.Having decided that the relief Parks seeks would necessitate the creation of a new rule, we must determine whether the rule would come within either of the two exceptions to the general principle that new rules will not be applied on collateral review. 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 489 U. S. 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." Penry, Page 494 U. S. 495 492 U.S. at 492 U. S. 329, 492 U. S. 330. Parks cannot invoke this exception. The rule sought by Parks would neither decriminalize a class of conduct nor prohibit the imposition of capital punishment on a particular class of persons. See Butler, ante at 494 U. S. 415; cf. Penry, supra, at 492 U. S. 329-330.The second exception is for "watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding. See Teague, supra, at 489 U. S. 311; Butler, ante at 494 U. S. 416. This exception is also inapplicable here. Although the precise contours of this exception may be difficult to discern, we have usually cited Gideon v. Wainwright, 372 U. S. 335 (1963), holding that a defendant has the right to be represented by counsel in all criminal trials for serious offenses, to illustrate the type of rule coming within the exception. See, e.g., Teague, supra, at 489 U. S. 311-312; Stumes, 465 U.S. at 465 U. S. 653-654, and n. 4 (Powell, J., concurring in judgment). Whatever one may think of the importance of respondent's proposed rule, it has none of the primacy and centrality of the rule adopted in Gideon or other rules which may be thought to be within the exception. The objectives of fairness and accuracy are more likely to be threatened than promoted by a rule allowing the sentence to turn not on whether the defendant, in the eyes of the community, is morally deserving of the death sentence, but on whether the defendant can strike an emotional chord in a Juror.The judgment of the Court of Appeals is therefore reversed.It is so ordered

U.S. Supreme CourtSaffle v. Parks, 494 U.S. 484 (1990)Saffle v. ParksNo. 88-1264Argued November 1, 1989Decided March 5, 1990494 U.S. 484SyllabusRespondent Parks' state court capital murder conviction and death sentence became final in 1983. The Federal District Court denied his habeas corpus petition, which was based on the argument that, inter alia, an instruction delivered in the penalty phase of his trial, telling the jury to "avoid any influence of sympathy," violated the Eighth Amendment. The Court of Appeals reversed, holding that the instruction was unconstitutional because it in effect told the jury to disregard the mitigating evidence that Parks had presented.Held: Parks is not entitled to federal habeas relief. The principle he urges is a "new rule" of federal constitutional law that can neither be announced nor applied in a case on collateral review unless it comes within one of two narrow -- and here inapplicable -- exceptions. Teague v. Lane, 489 U. S. 288; Penry v. Lynaugh, 492 U. S. 302. Pp. 492 U. S. 487-495.(a) Parks' contention that the Eighth Amendment requires that the jury be allowed to base the sentencing decision upon the sympathy they feel for the defendant after hearing his mitigating evidence constitutes a "new rule" as defined in Teague and Penry, since a state court considering his claim at the time his conviction became final would not have concluded that it was compelled by existing precedent to adopt it. Lockett v. Ohio, 438 U. S. 586, and Eddings v. Oklahoma, 455 U. S. 104, which were both decided before 1983, do not dictate the result urged by Parks, since those cases hold only that the State cannot bar relevant mitigating evidence from being presented and considered during a capital trial's penalty phase, and do not speak to how the State may guide the jury in considering and weighing that evidence. The holding in Penry, supra, at 492 U. S. 315 -- that the relief sought there did not call for the creation of a new rule -- does not compel a similar result here. Nor does the antisympathy instruction run afoul of Lockett and Eddings on the theory that jurors who react sympathetically to mitigating evidence may interpret the instruction as barring them from considering that evidence altogether. At the very least, nothing in those cases prevents the State from attempting to ensure reliability and nonarbitrariness by requiring that the jury consider and give effect to the defendant's mitigating evidence in the form of a reasoned moral response, rather than an emotional one based on the whims or caprice of jurors. Similarly, California v. Page 494 U. S. 485 Brown, 479 U. S. 538, 479 U. S. 542 -- which approved an antisympathy instruction that prevented jurors from considering emotional responses not based on the evidence -- is of no assistance to Parks. It is doubtful that a constitutional rule requiring that the jury be allowed to consider and give effect to emotions based on mitigating evidence may be inferred from Brown or is consistent with the Court's precedents. Moreover, since Brown was decided after 1983, Parks can gain its benefit, if any, only by pursuing the untenable argument that Brown's reasoning, if not its result, was dictated by Lockett and Eddings. Pp. 494 U. S. 487-494.(b) The new rule sought by Parks does not come within either of the two exceptions set forth in Teague and Penry. The first exception cannot be invoked, since Parks' proposed rule would neither decriminalize a class of private conduct nor prohibit the imposition of capital punishment on a particular class of persons. The second exception is also inapplicable, since Parks' rule has none of the primacy and centrality of the type of "watershed rule of criminal procedure" that the exception contemplates. The objectives of fairness and accuracy are more likely to be threatened than promoted by a rule allowing the sentence to turn not on whether the defendant, in the eyes of the community, is morally deserving of the death sentence, but on whether the defendant can strike an emotional chord in a juror. Pp. 494 U. S. 494-495.860 F.2d 1545, reversed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, and in all but Part IV of which BLACKMUN and STEVENS, JJ., joined, post, p. 494 U. S. 495.

1970_14

BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 400 U. S. 39.MR. JUSTICE WHITE delivered the opinion of the Court.On December 2, 1963, Alford was indicted for first-degree murder, a capital offense under North Carolina Page 400 U. S. 27 law. [Footnote 1] The court appointed an attorney to represent him, and this attorney questioned all but one of the various witnesses who appellee said would substantiate his claim of innocence. The witnesses, however, did not support Alford's story, but gave statements that strongly indicated his guilt. Faced with strong evidence of guilt and no substantial evidentiary support for the claim of innocence, Alford's attorney recommended that he plead guilty, but left the ultimate decision to Alford himself. The prosecutor agreed to accept a plea of guilty to a charge of second-degree murder, and, on December 10, 1963, Alford pleaded guilty to the reduced charge. Page 400 U. S. 28Before the plea was finally accepted by the trial court, the court heard the sworn testimony of a police officer who summarized the State's case. Two other witnesses besides Alford were also heard. Although there was no eyewitness to the crime, the testimony indicated that, shortly before the killing, Alford took his gun from his house, stated his intention to kill the victim, and returned home with the declaration that he had carried out the killing. After the summary presentation of the State's case, Alford took the stand and testified that he had not committed the murder, but that he was pleading guilty because he faced the threat of the death penalty if he did not do so. [Footnote 2] In response to the questions of his counsel, he acknowledged that his counsel had informed him of the difference between second- and first-degree Page 400 U. S. 29 murder and of his rights in case he chose to go to trial. [Footnote 3] The trial court then asked appellee if, in light of his denial of guilt, he still desired to plead guilty to second-degree murder, and appellee answered, "Yes, sir. I plead guilty on -- from the circumstances that he [Alford's attorney] told me." After eliciting information about Alford's prior criminal record, which was a long one, [Footnote 4] the trial court sentenced him to 30 years' imprisonment, the maximum penalty for second-degree murder. [Footnote 5]Alford sought post-conviction relief in the state court. Among the claims raised was the claim that his plea of guilty was invalid because it was the product of fear and coercion. After a hearing, the state court in 1965 found that the plea was "willingly, knowingly, and understandingly" made on the advice of competent counsel and in the face of a strong prosecution case. Subsequently, Alford petitioned for a writ of habeas corpus, first in the United States District Court for the Middle District of North Carolina and then in the Court of Appeals for the Fourth Circuit. Both courts denied the writ on the basis of the state court's findings that Alford voluntarily Page 400 U. S. 30 and knowingly agreed to plead guilty. In 1967, Alford again petitioned for a writ of habeas corpus in the District Court for the Middle District of North Carolina. That court, without an evidentiary hearing, again denied relief on the grounds that the guilty plea was voluntary and waived all defenses and nonjurisdictional defects in any prior stage of the proceedings, and that the findings of the state court in 1965 clearly required rejection of Alford's claim that he was denied effective assistance of counsel prior to pleading guilty. On appeal, a divided panel of the Court of Appeals for the Fourth Circuit reversed on the ground that Alford's guilty plea was made involuntarily. 405 F.2d 340 (1968). In reaching its conclusion, the Court of Appeals relied heavily on United States v. Jackson, 390 U. S. 570 (1968), which the court read to require invalidation of the North Carolina statutory framework for the imposition of the death penalty because North Carolina statutes encouraged defendants to waive constitutional rights by the promise of no more than life imprisonment if a guilty plea was offered and accepted. Conceding that Jackson did not require the automatic invalidation of pleas of guilty entered under the North Carolina statutes, the Court of Appeals ruled that Alford's guilty plea was involuntary because its principal motivation was fear of the death penalty. By this standard, even if both the judge and the jury had possessed the power to impose the death penalty for first-degree murder or if guilty pleas to capital charges had not been permitted, Alford's plea of guilty to second-degree murder should still have been rejected because impermissibly induced by his desire to eliminate the possibility of a death sentence. [Footnote 6] We noted Page 400 U. S. 31 probable jurisdiction. 394 U.S. 956 (1969). We vacate the judgment of the Court of Appeals and remand the case for further proceedings.We held in Brady v. United States, 397 U. S. 742 (1970), that a plea of guilty which would not have been entered except for the defendant's desire to avoid a possible death penalty and to limit the maximum penalty to life imprisonment or a term of years was not for that reason compelled within the meaning of the Fifth Amendment. Jackson established no new test for determining the validity of guilty pleas. The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. See Boykin v. Alabama, 395 U. S. 238, 395 U. S. 242 (1969); Machibroda v. United States, 368 U. S. 487, 368 U. S. 493 (1962); Kercheval v. United States, 274 U. S. 220, 274 U. S. 223 (1927). That he would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage. The standard fashioned and applied by the Court of Appeals was therefore erroneous, and we would, without more, vacate and remand the case for further proceedings with respect to any other claims of Alford which are properly before that court, if it were not for other circumstances appearing in the record which might seem to warrant an affirmance of the Court of Appeals.As previously recounted, after Alford's plea of guilty was offered and the State's case was placed before the judge, Alford denied that he had committed the murder but reaffirmed his desire to plead guilty to avoid a possible death sentence and to limit the penalty to the 30-year maximum provided for second-degree murder. Page 400 U. S. 32 Ordinarily, a judgment of conviction resting on a plea of guilty is justified by the defendant's admission that he committed the crime charged against him and his consent that judgment be entered without a trial of any kind. The plea usually subsumes both elements, and justifiably so, even though there is no separate, express admission by the defendant that he committed the particular acts claimed to constitute the crime charged in the indictment. See Brady v. United States, supra, at 397 U. S. 748; McCarthy v. United States, 394 U. S. 459, 394 U. S. 466 (1969). Here, Alford entered his plea but accompanied it with the statement that he had not shot the victim.If Alford's statements were to be credited as sincere assertions of his innocence, there obviously existed a factual and legal dispute between him and the State. Without more, it might be argued that the conviction entered on his guilty plea was invalid, since his assertion of innocence negatived any admission of guilt, which, as we observed last Term in Brady, is normally "[c]entral to the plea and the foundation for entering judgment against the defendant. . . ." 397 U.S. at 397 U. S. 748.In addition to Alford's statement, however, the court had heard an account of the events on the night of the murder, including information from Alford's acquaintances that he had departed from his home with his gun stating his intention to kill and that he had later declared that he had carried out his intention. Nor had Alford wavered in his desire to have the trial court determine his guilt without a jury trial. Although denying the charge against him, he nevertheless preferred the dispute between him and the State to be settled by the judge in the context of a guilty plea proceeding rather than by a formal trial. Thereupon, with the State's telling evidence and Alford's denial before it, Page 400 U. S. 33 the trial court proceeded to convict and sentence Alford for second-degree murder.State and lower federal courts are divided upon whether a guilty plea can be accepted when it is accompanied by protestations of innocence and hence contains only a waiver of trial but no admission of guilt. Some courts, giving expression to the principle that "[o]ur law only authorizes a conviction where guilt is shown," Harris v. State, 76 Tex.Cr.R. 126, 131, 172 S.W. 975, 977 (1915), require that trial judges reject such pleas. See, e.g., Hulsey v. United States, 369 F.2d 284, 287 (CA5 1966); United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 24, 255-257 (SDNY 1966); People v. Morrison, 348 Mich. 88, 81 N.W.2d 667 (1957); State v. Reali, 26 N.J. 222, 139 A.2d 300 (1958); State v. Leyba, 80 N.M.190, 193, 453 P.2d 211, 214 (1969); State v. Stacy, 43 Wash. 2d 358, 361-364, 261 P.2d 400, 402-403 (1953). But others have concluded that they should not "force any defense on a defendant in a criminal case," particularly when advancement of the defense might "end in disaster. . . ." Tremblay v. Overholser, 199 F. Supp. 569, 570 (DC 1961). They have argued that, since "guilt, or the degree of guilt, is at times uncertain and elusive,""[a]n accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. . . ."McCoy v. United States, 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308 (1966). As one state court observed nearly a century ago,"[r]easons other than the fact that he is guilty may induce a defendant to so plead, . . . [and] [h]e must be permitted to judge for himself in this respect."State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879) (dictum). Accord, e.g., Griffin v. United States, 132 U.S.App.D.C. 108, Page 400 U. S. 34 405 F.2d 1378 (1968); Bruce v. United States, 126 U.S.App.D.C. 336, 342-343, 379 F.2d 113, 119-120 (1967); City of Burbank v. General Electric Co., 329 F.2d 825, 835 (CA9 1964) (dictum); State v. Martinez, 89 Idaho 129, 138, 403 P.2d 597, 602-603 (1965); People v. Hetherington, 379 Ill. 71, 39 N.E.2d 361 (1942); State ex rel. Crossley v. Tahash, 263 Minn. 299, 307-308, 116 N.W.2d 666, 672 (1962); Commonwealth v. Cottrell, 433 Pa. 177, 249 A.2d 294 (1969). Cf. United States ex rel. Brown v. LaVallee, 424 F.2d 457 (CA2 1970). [Footnote 7]This Court has not confronted this precise issue, but prior decisions do yield relevant principles. In Lynch v. Overholser, 369 U. S. 705 (1962), Lynch, who had been charged in the Municipal Court of the District of Columbia with drawing and negotiating bad checks, a misdemeanor punishable by a maximum of one year in jail, sought to enter a plea of guilty, but the trial judge refused to accept the plea since a psychiatric report in the Judge's possession indicated that Lynch had been suffering from "a manic depressive psychosis, at the time of the crime charged," and hence might have been not guilty by reason of insanity. Although, at the subsequent trial, Lynch did not rely on the insanity defense, he was found not guilty by reason of insanity and committed for an indeterminate period to a mental institution. On habeas corpus, the Court ordered his release, construing the congressional legislation seemingly authorizing the commitment as not reaching a case where the accused preferred a guilty plea to a plea of insanity. The Court expressly refused to rule that Lynch had an absolute right to have his Page 400 U. S. 35 guilty plea accepted, see id. at 369 U. S. 719, but implied that there would have been no constitutional error had his plea been accepted even though evidence before the judge indicated that there was a valid defense.The issue in Hudson v. United States, 272 U. S. 451 (1926), was whether a federal court has power to impose a prison sentence after accepting a plea of nolo contendere, a plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty. [Footnote 8] The Court held Page 400 U. S. 36 that a trial court does have such power, and, except for the cases which were rejected in Hudson, [Footnote 9] the federal courts have uniformly followed this rule, even in cases involving moral turpitude. Bruce v. United States, supra, at 343 n. 20, 379 F.2d at 120 n. 20 (dictum). See, e.g., Lott v. United States, 367 U. S. 421 (1961) (fraudulent evasion of income tax); Sullivan v. United States, 348 U. S. 170 (1954) (ibid.); Farnsworth v. Zerbst, 98 F.2d 541 (CA5 1938) (espionage); Pharr v. United States, 48 F.2d 767 (CA6 1931) (misapplication of bank funds); United States v. Bagliore, 182 F. Supp. 714 (EDNY 1960) (receiving stolen property). Implicit in the nolo contendere cases is a recognition that the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence. Page 400 U. S. 37These cases would be directly in point if Alford had simply insisted on his plea but refused to admit the crime. The fact that his plea was denominated a plea of guilty, rather than a plea of nolo contendere, is of no constitutional significance with respect to the issue now before us, for the Constitution is concerned with the practical consequences, not the formal categorizations, of state law. See Smith v. Bennett, 365 U. S. 708, 365 U. S. 712 (1961); Jones v. United States, 362 U. S. 257, 362 U. S. 266 (1960). Cf. Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 358 U. S. 630-632 (1959). Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt. Here, the State had a strong case of first-degree murder against Alford. Whether he realized or disbelieved his guilt, he insisted on his plea because in his view he had absolutely nothing to gain by a trial and much to gain by pleading. Because of the overwhelming evidence against him, a trial was precisely what neither Alford nor his attorney desired. Confronted with the choice between a trial for first-degree murder, on the one hand, and a plea of guilty to second-degree murder, on the other, Alford quite reasonably chose the latter and thereby limited the maximum penalty to a 30-year term. When his plea is viewed in light Page 400 U. S. 38 of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, see McCarthy v. United States, supra, at 394 U. S. 466-467 (1969), [Footnote 10] its validity cannot be seriously questioned. In view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it. [Footnote 11]Relying on United States v. Jackson, supra, Alford now argues in effect that the State should not have allowed Page 400 U. S. 39 him this choice but should have insisted on proving him guilty of murder in the first degree. The States, in their wisdom, may take this course by statute or otherwise and may prohibit the practice of accepting pleas to lesser included offenses under any circumstances. [Footnote 12] But this is not the mandate of the Fourteenth Amendment and the Bill of Rights. The prohibitions against involuntary or unintelligent pleas should not be relaxed, but neither should an exercise in arid logic render those constitutional guarantees counterproductive and put in jeopardy the very human values they were meant to preserve.The Court of Appeals for the Fourth Circuit was in error to find Alford's plea of guilty invalid because it was made to avoid the possibility of the death penalty. That court's judgment directing the issuance of the writ of habeas corpus is vacated, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtNorth Carolina v. Alford, 400 U.S. 25 (1970)North Carolina v. AlfordNo. 14Argued November 17, 1969Reargued October 14, 1970Decided November 23, 1970400 U.S. 25SyllabusAppellee was indicted for the capital crime of first-degree murder. At that time, North Carolina law provided for the penalty of life imprisonment when a plea of guilty was accepted to a first-degree murder charge; for the death penalty following a jury verdict of guilty, unless the jury recommended life imprisonment; and for a penalty of from two to 30 years' imprisonment for second-degree murder. Appellee's attorney, in the face of strong evidence of guilt, recommended a guilty plea, but left the decision to appellee. The prosecutor agreed to accept a plea of guilty to second-degree murder. The trial court heard damaging evidence from certain witnesses before accepting a plea. Appellee pleaded guilty, although disclaiming guilt, because of the threat of the death penalty, and was sentenced to 30 years' imprisonment. The Court of Appeals, on an appeal from a denial of a writ of habeas corpus, found that appellee's guilty plea was involuntary because it was motivated principally by fear of the death penalty.Held: The trial judge did not commit constitutional error in accepting appellee's guilty plea. Pp. 400 U. S. 31-39.(a) A guilty plea that represents a voluntary and intelligent choice among the alternatives available to a defendant, especially one represented by competent counsel, is not compelled within the meaning of the Fifth Amendment because it was entered to avoid the possibility of the death penalty. Brady v. United States, 397 U. S. 742. P. 400 U. S. 31.(b) Hudson v. United States, 272 U. S. 451, which held that a federal court may impose a prison sentence after accepting a plea of nolo contendere, implicitly recognized that there is no constitutional bar to imposing a prison sentence upon an accused who is unwilling to admit guilt but who is willing to waive trial and accept the sentence. Pp. 400 U. S. 35-36.(c) An accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even if his Page 400 U. S. 26 guilty plea contains a protestation of innocence, when, as here, he intelligently conclude that his interests require a guilty plea and the record strongly evidences guilt. Pp. 400 U. S. 37-38.(d) The Fourteenth Amendment and the Bill of Rights do not prohibit the States from accepting pleas to lesser included offenses. P. 400 U. S. 39.405 F.2d 340, vacated and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. BLACK, J., filed a statement concurring in the judgment, post, p. 400 U. S. 39. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 400 U. S. 39.

1987_86-1824

JUSTICE BLACKMUN delivered the opinion of the Court.In this case, we review a determination by the Michigan Court of Appeals that any "investigatory pursuit" of a person undertaken by the police necessarily constitutes a seizure under the Fourth Amendment of the Constitution. We conclude that the police conduct in this case did not amount to a seizure, for it would not have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.IEarly on the afternoon of December 19, 1984, four officers riding in a marked police cruiser were engaged in routine patrol duties in Metropolitan Detroit. As the cruiser came to an intersection, one of the officers observed a car pull over to the curb. A man got out of the car and approached respondent Michael Mose Chesternut, who was standing alone on the corner. When respondent saw the patrol car nearing the corner where he stood, he turned and began to run. As Officer Peltier, one of those in the car, later testified, the patrol car followed respondent around the corner "to see where he was going." App. 25. The cruiser quickly caught up with respondent and drove alongside him for a short distance. As they drove beside him, the officers observed respondent discard a number of packets he pulled from his right-hand pocket. Officer Peltier got out of the cruiser to examine the packets. He discovered that they contained pills. While Peltier was engaged in this inspection, respondent, who had run only a few paces farther, stopped. Surmising on the basis of his experience as a paramedic that the pills contained codeine, Officer Peltier arrested respondent for the possession of narcotics and took him to the station house. During an ensuing search, the police discovered in respondent's hatband another packet of pills, a packet containing heroin, and a hypodermic needle. Respondent was charged with knowingly and intentionally possessing heroin, tablets Page 486 U. S. 570 containing codeine, and tablets containing diazepam, all in violation of Mich.Comp.Laws § 333.7403(2) (1980).At a preliminary hearing, at which Officer Peltier was the only witness, respondent moved to dismiss the charges on the ground that he had been unlawfully seized during the police pursuit preceding his disposal of the packets. The presiding Magistrate granted the motion and dismissed the complaint. [Footnote 1] Relying on People v. Terrell, 77 Mich.App. 676, 259 N.W.2d 187 (1977), [Footnote 2] the Magistrate ruled from the bench that a police "chase" like the one involved in this case implicated Fourth Amendment protections and could not be justified by the mere fact that the suspect ran at the sight of the police. App. 31-35. Applying a clearly erroneous standard to the Magistrate's ruling, the trial court upheld the dismissal order. Id. at 2-10.The Michigan Court of Appeals "reluctantly" affirmed, 157 Mich.App. 181, 184, 403 N.W.2d 74, 76 (1986), noting that"although we find the result unfortunate, we cannot say that the lower court's ruling was clearly erroneous under the present law or the facts presented."Id. at 183, 403 N.W. Page 486 U. S. 571 2d at 75. Like the courts below it, the Court of Appeals rested its ruling on state precedents interpreting the Fourth Amendment. [Footnote 3] The court determined, first, that any "investigatory pursuit" amounts to a seizure under Terry v. Ohio, 392 U. S. 1 (1968). "As soon as the officers began their pursuit," the court explained, "defendant's freedom was restricted." 157 Mich.App. at 183, 403 N.W.2d at 75. The court went on to conclude that respondent's flight from the police was insufficient, by itself, to give rise to the particularized suspicion necessary to justify this kind of seizure. Because "the police saw [respondent] do absolutely nothing illegal, nor did they observe other suspicious activity," the court determined that the investigatory pursuit had violated the Fourth Amendment's prohibition against unreasonable seizures. Id. at 184, 403 N.W.2d at 76. Page 486 U. S. 572After the Michigan Supreme Court denied petitioner leave to appeal, [Footnote 4] App. to Pet. for Cert. 9a, petitioner sought review here. We granted a writ of certiorari, 484 U.S. 895 (1987), to consider whether the officers' pursuit of respondent constituted a seizure implicating Fourth Amendment protections, and, if so, whether the act of fleeing, by itself, was sufficient to constitute reasonable suspicion justifying that seizure. Because we conclude that the officers' conduct did not constitute a seizure, we need not reach the second question.IIAPetitioner argues that the Fourth Amendment is never implicated until an individual stops in response to the police's show of authority. Thus, petitioner would have us rule that a lack of objective and particularized suspicion would not poison police conduct, no matter how coercive, as long as the police did not succeed in actually apprehending the individual. Respondent contends, in sharp contrast, that any and all police "chases" are Fourth Amendment seizures. Respondent would have us rule that the police may never pursue an individual absent a particularized and objective basis for suspecting that he is engaged in criminal activity.Both petitioner and respondent, it seems to us, in their attempts to fashion a bright-line rule applicable to all investigatory pursuits, have failed to heed this Court's clear direction that any assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account "all of the circumstances surrounding the incident'" in each individual case. INS v. Delgado, 466 U. S. 210, 466 U. S. 215 (1984), quoting United States v. Mendenhall, 446 U. S. 544, 446 U. S. 554 (1980) (opinion of Stewart, J.). Rather than adopting either rule proposed by the parties and determining that an investigatory pursuit is or is not necessarily a Page 486 U. S. 573 seizure under the Fourth Amendment, we adhere to our traditional contextual approach and determine only that, in this particular case, the police conduct in question did not amount to a seizure.BIn Terry v. Ohio, 392 U. S. 1 (1968), the Court noted:"Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred."Id. at 392 U. S. 19, n. 16. A decade later, in United States v. Mendenhall, Justice Stewart, writing for himself and then-JUSTICE REHNQUIST, first transposed this analysis into a test to be applied in determining whether "a person has been seized' within the meaning of the Fourth Amendment." 446 U.S. at 446 U. S. 554. [Footnote 5] The test provides that the police can be said to have seized an individual "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Ibid. The Court has since embraced this test. See INS v. Delgado, 466 U.S. at 466 U. S. 215. See also Florida v. Royer, 460 U. S. 491, 460 U. S. 502 (1983) (plurality opinion); id. at 460 U. S. 514 (BLACKMUN, J., dissenting).The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to "leave" will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs. Compare United States v. Mendenhall, supra, (considering Page 486 U. S. 574 whether police request to see identification and ticket of individual who stopped upon police's approach constituted seizure), with INS v. Delgado, supra, (considering whether INS "factory survey" conducted while employees continued to move about constituted seizure of entire workforce).While the test is flexible enough to be applied to the whole range of police conduct in an equally broad range of settings, it calls for consistent application from one police encounter to the next, regardless of the particular individual's response to the actions of the police. The test's objective standard -- looking to the reasonable man's interpretation of the conduct in question -- allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment. 3 W. LaFave, Search and Seizure § 9.2(h), pp. 407-408 (2d ed.1987 and Supp.1988). This "reasonable person" standard also ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.CApplying the Court's test to the facts of this case, we conclude that respondent was not seized by the police before he discarded the packets containing the controlled substance. Although Officer Peltier referred to the police conduct as a "chase," and the Magistrate who originally dismissed the complaint was impressed by this description, [Footnote 6] the characterization is not enough, standing alone, to implicate Fourth Amendment protections. Contrary to respondent's assertion that a chase necessarily communicates that detention is Page 486 U. S. 575 intended and imminent, Brief for Respondent 9, the police conduct involved here would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon respondent's freedom of movement. [Footnote 7] The record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block respondent's course or otherwise control the direction or speed of his movement. Tr. of Oral Arg. 2, 11, 20. [Footnote 8] While the very presence of a police car driving parallel to a running pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure. [Footnote 9] Cf. United States v. Knotts, 460 U. S. 276 (1983) Page 486 U. S. 576 (holding that continuous surveillance on public thoroughfares by visual observation and electronic "beeper" does not constitute seizure); Florida v. Royer, 460 U.S. at 460 U. S. 497 (plurality opinion) (noting that mere approach by law enforcement officers, identified as such, does not constitute seizure). Without more, the police conduct here -- a brief acceleration to catch up with respondent, followed by a short drive alongside him -- was not "so intimidating" that respondent could reasonably have believed that he was not free to disregard the police presence and go about his business. INS v. Delgado, 466 U.S. at 466 U. S. 216. The police therefore were not required to have "a particularized and objective basis for suspecting [respondent] of criminal activity," in order to pursue him. United States v. Cortez, 449 U. S. 411, 449 U. S. 417-418 (1981).IIIBecause respondent was not unlawfully seized during the initial police pursuit, we conclude that charges against him were improperly dismissed. Accordingly, we reverse the judgment of the Michigan Court of Appeals and remand the case to that court for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtMichigan v. Chesternut, 486 U.S. 567 (1988)Michigan v. ChesternutNo. 86-1824Argued February 24, 1988Decided June 13, 1988486 U.S. 567SyllabusObserving the approach of a police car on routine patrol, respondent began to run. The police followed him "to see where he was going," and, after catching up with him and driving alongside him for a short distance, observed him discarding a number of packets. Surmising that the pills subsequently discovered in the packets contained codeine, the police arrested him and, after a search of his person revealed other drugs and a hypodermic needle, charged him with possession of controlled substances in violation of Michigan law. At a preliminary hearing, a Magistrate dismissed the charges on the ground that respondent had been unlawfully seized during the police pursuit preceding his disposal of the packets. The trial court upheld the dismissal, and the Michigan Court of Appeals affirmed. Applying state precedents interpreting the Fourth Amendment to the Federal Constitution, the latter court ruled that any "investigatory pursuit" amounts to a seizure under Terry v. Ohio, 392 U. S. 1, since the defendant's freedom is restricted as soon as the officers begin their pursuit. The court also concluded that respondent's flight from the police was insufficient, by itself, to give rise to the particularized suspicion necessary to justify this kind of seizure.Held: The officers' pursuit of respondent did not constitute a "seizure" implicating Fourth Amendment protections. Thus, the charges against him were improperly dismissed. Pp. 486 U. S. 572-576.(a) No bright-line rule applicable to all investigatory pursuits can be fashioned. Rather, the appropriate test is whether a reasonable man, viewing the particular police conduct as a whole and within the setting of all of the surrounding circumstances, would have concluded that the police had in some way restrained his liberty so that he was not free to leave. Pp. 486 U. S. 572-574.(b) Under this test, respondent was not "seized" before he discarded the drug packets. One officer's characterization of the police conduct as a "chase," standing alone, is insufficient to implicate the Fourth Amendment, since the police conduct -- which consisted of a brief acceleration to catch up with respondent, followed by a short drive alongside him -- would not have communicated to the reasonable person an attempt to capture him or otherwise intrude on his freedom of movement. The record does not reflect that the police activated a siren or flashers; commanded respondent to halt or displayed any weapons; or operated the Page 486 U. S. 568 car aggressively to block his course or to control his direction or speed. Thus, the police conduct was not so intimidating that respondent could reasonably have believed that he was not free to disregard the police presence and go about his business. The police therefore were not required to have a particularized and objective basis for suspecting him of criminal activity in order to pursue him. Pp. 486 U. S. 574-576.157 Mich. App. 181, 403 N.W.2d 74, reversed and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, in which SCALIA, J., joined. Page 486 U. S. 569

1974_73-1004

MR. JUSTICE BLACKMUN delivered the opinion of the Court.The issue in this case is whether First Amendment rights were abridged when respondents denied petitioner the use of a municipal facility in Chattanooga, Tenn. for the showing of the controversial rock musical "Hair." It is established, of course, that the Fourteenth Amendment has made applicable to the States the First Amendment's guarantee of free speech. Douglas v. City of Jeannette, 319 U. S. 157, 319 U. S. 162 (1943).IPetitioner, Southeastern Promotions, Ltd., is a New York corporation engaged in the business of promoting and presenting theatrical productions for profit. On October 29, 1971, it applied for the use of the Tivoli, a privately owned Chattanooga theater under long-term lease to the city, to present "Hair" there for six days beginning November 23. This was to be a road company showing of the musical that had played for three Page 420 U. S. 548 years on Broadway, and had appeared in over 140 cities in the United States. [Footnote 1]Respondents are the directors of the Chatanooga Memorial Auditorium, a municipal theater. [Footnote 2] Shortly after receiving Southeastern's application, the directors met, and, after a brief discussion, voted to reject it. None of them had seen the play or read the script, but they understood from outside reports that the musical, as produced elsewhere, involved nudity and obscenity on stage. Although no conflicting engagement was scheduled for the Tivoli, respondents determined that the production would not be "in the best interest of the community." Southeastern was so notified, but no written statement of reasons as provided.On November 1, petitioner, alleging that respondents' action abridged its First Amendment rights, sought a preliminary Page 420 U. S. 549 injunction from the United States District Court for the Eastern District of Tennessee. Respondents did not then file an answer to the complaint. [Footnote 3] A hearing was held on November 4. The District Court took evidence as to the play's content, and respondent Conrad gave the following account of the board's decision:"We use the general terminology in turning down the request for its use that we felt it was not in the best interest of the community, and I can't speak beyond that. That was the board's determination.""Now, I would have to speak for myself, the policy to which I would refer, as I mentioned, basically indicates that we will, as a board, allow those productions which are clean and healthful and culturally uplifting, or words to that effect. They are quoted in the original dedication booklet of the Memorial Auditorium."App. 25. [Footnote 4] The court denied preliminary relief, concluding that petitioner had failed to show that it would be irreparably Page 420 U. S. 550 harmed pending a final judgment since scheduling was "purely a matter of financial loss or gain," and was compensable.Southeastern some weeks later pressed for a permanent injunction permitting it to use the larger auditorium, rather than the Tivoli, on Sunday, April 9, 1972. The District Court held three days of hearings beginning April 3. On the issue of obscenity vel non, presented to an advisory jury, it took evidence consisting of the full script and libretto, with production notes and stage instructions, a recording of the musical numbers, a souvenir program, and the testimony of seven witnesses who had seen the production elsewhere. The jury returned a verdict that "Hair" was obscene. The District Court agreed. It concluded that conduct in the production -- group nudity and simulated sex -- would violate city ordinances and state statutes [Footnote 5] making public nudity and Page 420 U. S. 551 obscene acts criminal offenses. [Footnote 6] This criminal conduct, the court reasoned, was neither speech nor symbolic speech, and was to be viewed separately from the musical's Page 420 U. S. 552 speech elements. Being pure conduct, comparable to rape or murder, it was not entitled to First Amendment protection. Accordingly, the court denied the injunction. 341 F. Supp. 465 (1972).On appeal, the United States Court of Appeals for the Sixth Circuit, by a divided vote, affirmed. 486 F.2d 894 (1973). The majority relied primarily on the lower court's reasoning. Neither the judges of the Court of Appeals nor the District Court saw the musical performed. Because of the First Amendment overtones, we granted certiorari. 415 U.S. 912 (1974).Petitioner urges reversal on the grounds that (1) respondents' action constituted an unlawful prior restraint, (2) the courts below applied an incorrect standard for the determination of the issue of obscenity vel non, and (3) the record does not support a finding that "Hair" is obscene. We do not reach the latter two contentions, for we agree with the first. We hold that respondents' rejection of petitioner's application to use this public forum accomplished a prior restraint under a system lacking in constitutionally required minimal procedural safeguards. Accordingly, on this narrow ground, we reverse.IIRespondents' action here is indistinguishable in its censoring effect from the official actions consistently identified as prior restraints in a long line of this Court's decisions. See Shuttlesworth v. Birmingham, 394 U. S. 147, 394 U. S. 150-151 (1969); Staub v. City of Baxley, 355 U. S. 313, 355 U. S. 322 (1958); Kunz v. New York, 340 U. S. 290, 340 U. S. 293-294 (1951); Schneider v. State, 308 U. S. 147, 308 U. S. 161-162 Page 420 U. S. 553 (1939); Lovell v. Griffin, 303 U. S. 444, 303 U. S. 451-452 (1938). In these cases, the plaintiffs asked the courts to provide relief where public officials had forbidden the plaintiffs the use of public places to say what they wanted to say. The restraints took a variety of forms, with officials exercising control over different kinds of public places under the authority of particular statutes. All, however, had this in common: they gave public officials the power to deny use of a forum in advance of actual expression.Invariably, the Court has felt obliged to condemn systems in which the exercise of such authority was not bounded by precise and clear standards. The reasoning has been, simply, that the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use. Our distaste for censorship -- reflecting the natural distaste of a free people -- is deep-written in our law.In each of the cited cases, the prior restraint was embedded in the licensing system itself, operating without acceptable standards. In Shuttlesworth, the Court held unconstitutional a Birmingham ordinance which conferred upon the city commission virtually absolute power to prohibit any "parade," "procession," or "demonstration" on streets or public ways. It ruled that"a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional."394 U.S. at 394 U. S. 150-151. In Hague v. CIO, 307 U. S. 496 (1939), a Jersey City ordinance that forbade public assembly in the streets or parks without a permit from the local director of safety, who was empowered to refuse the permit upon his opinion that he would thereby prevent "riots, disturbances or disorderly Page 420 U. S. 554 assemblage,'" was held void on its face. Id. at 307 U. S. 516 (opinion of Roberts, J.).In Cantwell v. Connecticut, 310 U. S. 296 (1940), a unanimous Court held invalid an act which proscribed the solicitation of money or any valuable thing for "any alleged religious, charitable or philanthropic cause" unless that cause was approved by the secretary of the public welfare council. The elements of the prior restraint were clearly set forth:"It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion."Id. at 310 U. S. 305.The elements of prior restraint identified in Cantwell and other cases were clearly present in the system by which the Chattanooga board regulated the use of its theaters. One seeking to use a theater was required to apply to the board. The board was empowered to determine whether the applicant should be granted permission -- in effect, a license or permit -- on the basis of its review of the content of the proposed production. Approval of the application depended upon the board's affirmative action. Approval was not a matter of routine; instead, it involved the "appraisal of facts, the exercise of judgment, and the formation of an opinion" by the board. [Footnote 7] Page 420 U. S. 555The board's judgment effectively kept the musical off stage. Respondents did not permit the show to go on and rely on law enforcement authorities to prosecute for anything illegal that occurred. Rather, they denied the application in anticipation that the production would violate the law. See New York Times Co. v. United States, 403 U. S. 713, 403 U. S. 735-738 (1971) (WHITE, J., concurring).Respondents' action was no less a prior restraint because the public facilities under their control happened to be municipal theaters. The Memorial Auditorium and the Tivoli were public forums designed for and dedicated to expressive activities. There was no question as to the usefulness of either facility for petitioner's production. There was no contention by the board that these facilities could not accommodate a production of this size. None of the circumstances qualifying as an established exception to the doctrine of prior restraint was present. Petitioner was not seeking to use a facility primarily serving a competing use. See, e.g., Cameron v. Johnson, 390 U. S. 611 (1968); Adderley v. Florida, 385 U. S. 39 (1966); Brown v. Louisiana, 383 U. S. 131 (1966). Nor was rejection of the application based on any regulation of time, place, or manner related to the nature of the facility or applications from other users. See Cox v. New Hampshire, 312 U. S. 569, 312 U. S. 574 (1941); Poulos v. New Hampshire, 345 U. S. 395, 345 U. S. 408 (1953). No rights Page 420 U. S. 556 of individuals in surrounding areas were violated by noise or any other aspect of the production. See Kovacs v. Cooper, 336 U. S. 77 (1949). There was no captive audience. See Lehman v. City of Shaker Heights, 418 U. S. 298, 418 U. S. 304, 418 U. S. 306-308 (1974); Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 467-468 (1952) (DOUGLAS, J., dissenting).Whether petitioner might have used some other, privately owned, theater in the city for the production is of no consequence. There is reason to doubt on this record whether any other facility would have served as well as these, since none apparently had the seating capacity, acoustical features, stage equipment, and electrical service that the show required. Even if a privately owned forum had been available, that fact alone would not justify an otherwise impermissible prior restraint. "[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State, 308 U.S. at 308 U. S. 163.Thus, it does not matter for purposes of this case that the board's decision might not have had the effect of total suppression of the musical in the community. Denying use of the municipal facility under the circumstances present here constituted the prior restraint. [Footnote 8] Page 420 U. S. 557 That restraint was final. It was no mere temporary bar while necessary judicial proceedings were under way. [Footnote 9]Only if we were to conclude that live drama is unprotected by the First Amendment -- or subject to a totally different standard from that applied to other forms of expression -- could we possibly find no prior restraint here. Each medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S. 503 (1952); see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969). By its nature, theater usually is the acting out -- or singing out -- Page 420 U. S. 558 of the written word, and frequently mixes speech with live action or conduct. But that is no reason to hold theater subject to a drastically different standard. For, as was said in Burstyn, supra, at 343 U. S. 503, when the Court was faced with the question of what First Amendment standard applies to films:"[T]he basic principles of freedom of speech and the press, like the First Amendment's command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule. There is no justification in this case for making an exception to that rule."IIILabeling respondents' action a prior restraint does not end the inquiry. Prior restraints are not unconstitutional per se. Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 70 n. 10 (1963). See Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 716 (1931); Times Film Corp. v. Chicago, 365 U. S. 43 (1961). We have rejected the contention that the First Amendment's protection"includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture . . . even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government. . . ."Id. at 365 U. S. 46-47.Any system of prior restraint, however, "comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. at 372 U. S. 70; New York Times Co. v. United States, 403 U.S. at 403 U. S. 714; Organization for a Better Austin v. Keefe, 402 U. S. 415, 402 U. S. 419 (1971); Carroll v. Princess Anne, 393 U. S. 175, 393 U. S. 181 (1968); Near v. Minnesota ex rel. Olson, 283 U.S. at 283 U. S. 716. The presumption against prior restraints is heavier -- and the degree of protection Page 420 U. S. 559 broader than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable. See Speiser v. Randall, 357 U. S. 513 (1958).In order to be held lawful, respondents' action, first, must fit within one of the narrowly defined exceptions to the prohibition against prior restraints, and, second, must have been accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech. Bantam Books, Inc. v. Sullivan, 372 U.S. at 372 U. S. 71. We do not decide whether the performance of "Hair" fits within such an exception, or whether, as a substantive matter, the board's standard for resolving that question was correct, for we conclude that the standard, whatever it may have been, was not implemented by the board under a system with appropriate and necessary procedural safeguards.The settled rule is that a system of prior restraint "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system." Freedman v. Maryland, 380 U. S. 51, 380 U. S. 58 (1965). See United States v. Thirty-seven Photographs, 402 U. S. 363, 402 U. S. 367 (1971); Blount v. Rizzi, 400 U. S. 410, 400 U. S. 419-421 (1971); Teitel Film Corp. v. Cusack, 390 U. S. 139, 390 U. S. 141-142 (1968). See also Heller v. New York, 413 U. S. 483, 413 U. S. 489-490 (1973); Bantam Books, Inc. v. Sullivan, 372 U.S. at 372 U. S. 70-71; Kingsley Books, Inc. v. Brown, 354 U. S. 436 (1957). In Freedman, the Court struck down a state scheme for the licensing of motion pictures, holding"that, because only a Page 420 U. S. 560 judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint."380 U.S. at 380 U. S. 58. We held in Freedman, and we reaffirm here, that a system of prior restraint runs afoul of the First Amendment if it lacks certain safeguards: First, the burden of instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor. Second, any restraint prior to judicial review can be imposed only for a specified brief period, and only for the purpose of preserving the status quo. Third, a prompt final judicial determination must be assured.Although most of our cases have pertained to motion picture licensing or censorship, this Court has applied Freedman to the system by which federal customs agents seize imported materials, United States v. Thirty-seven Photographs, supra, and to that by which postal officials restrict use of the mails, Blount v. Rizzi, supra. In Blount, we held unconstitutional provisions of the postal laws designed to control use of the mails for commerce in obscene materials. The provisions enabled the Postmaster General to halt delivery of mail to an individual and prevent payment of money orders to him. The administrative order became effective without judicial approval, and the burden of obtaining judicial review was placed upon the user.If a scheme that restricts access to the mails must furnish the procedural safeguards set forth in Freedman, no less must be expected of a system that regulates use of a public forum. Respondents here had the same powers of licensing and censorship exercised by postal officials in Blount and by boards and officials in other cases.The theory underlying the requirement of safeguards is applicable here with equal, if not greater, force. An administrative board assigned to screening stage production -- Page 420 U. S. 561 and keeping off stage anything not deemed culturally uplifting or healthful -- may well be less responsive than a court, an independent branch of government, to constitutionally protected interests in free expression. [Footnote 10] And if judicial review is made unduly onerous, by reason of delay or otherwise, the board's determination in practice may be final.Insistence on rigorous procedural safeguards under these circumstances is "but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks." Bantam Books, Inc. v. Sullivan, 372 U.S. at 372 U. S. 66. Because the line between unconditionally guaranteed speech and speech that may be legitimately regulated is a close one, the "separation of legitimate from illegitimate speech calls for . . . sensitive tools." Speiser v. Randall, 357 U.S. at 357 U. S. 525. The perils of prior restraint are well illustrated by this case, where neither the Board nor the lower courts could have known precisely the extent of nudity or simulated sex in the musical, or even that either would appear, before the play was actually performed. [Footnote 11]Procedural safeguards were lacking here in several respects. The board's system did not provide a procedure for prompt judicial review. Although the District Court commendably held a hearing on petitioner's motion for a preliminary injunction within a few days of the Page 420 U. S. 562 board's decision, it did not review the merits of the decision at that time. The question at the hearing was whether petitioner should receive preliminary relief, i.e., whether there was likelihood of success on the merits and whether petitioner would suffer irreparable injury pending full review. Effective review on the merits was not obtained until more than five months later. Throughout, it was petitioner, not the board, that bore the burden of obtaining judicial review. It was petitioner that had the burden of persuasion at the preliminary hearing, if not at the later stages of the litigation. Respondents did not file a formal answer to the complaint for five months after petitioner sought review. During the time prior to judicial determination, the restraint altered the status quo. Petitioner was forced to forgo the initial dates planned for the engagement and to seek to schedule the performance at a later date. The delay and uncertainty inevitably discouraged use of the forum.The procedural shortcomings that form the basis for our decision are unrelated to the standard that the board applied. Whatever the reasons may have been for the board's exclusion of the musical, it could not escape the obligation to afford appropriate procedural safeguards. We need not decide whether the standard of obscenity applied by respondents or the courts below was sufficiently precise or substantively correct, or whether the production is, in fact, obscene. See Hamling v. United States, 418 U. S. 87 (1974); Jenkins v. Georgia, 418 U. S. 153 (1974); Lewis v. City of New Orleans, 415 U. S. 130 (1974); Miller v. California, 413 U. S. 15 (1973); Gooding v. Wilson, 405 U. S. 518 (1972). The standard, whatever it may be, must be implemented under a system that assures prompt judicial review with a minimal restriction of First Amendment rights necessary under the circumstances.Reversed

U.S. Supreme CourtSoutheastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)Southeastern Promotions, Ltd. v. ConradNo. 73-1004Argued October 17, 1974Decided March 18, 1975420 U.S. 546SyllabusPetitioner, a promoter of theatrical productions, applied to respondents, members of a municipal board charged with managing a city auditorium and a city leased theater, to present a musical production at the theater. Upon the basis of outside reports from which it concluded that the production would not be "in the best interest of the community," respondents rejected the application. Petitioner's subsequent motion for a preliminary injunction was denied following a hearing by the District Court, which did not review the merits of respondents' decision but concluded that petitioner had not met the burden of proving irreparable injury. Petitioner then sought a permanent injunction permitting it to use the auditorium. Several months later, respondents filed their first responsive pleading, and the District Court, after a three-day hearing on the content of the musical, concluded that the production contained obscene conduct not entitled to First Amendment protection, and denied injunctive relief. The Court of Appeals affirmed.Held:1. Respondents' denial of use of the municipal facilities for the production, which was based on the board members' judgment of the musical's content, constituted a prior restraint. Shuttlesworth v. Birmingham, 394 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296. Pp. 420 U. S. 552-558.2. A system of prior restraint "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system," Freedman v. Maryland, 380 U. S. 51, 380 U. S. 58, viz., (1) the burden of instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor; (2) any restraint before judicial review can be imposed only for a specified brief period and only to preserve the status quo; and (3) a prompt judicial determination must be assured. Since those safeguards in several respects were lacking here, respondents' action violated petitioner's First Amendment rights. Pp. 420 U. S. 558-562.486 F.2d 894, reversed. Page 420 U. S. 547BLACKMUN, J, delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. DOUGLAS, J., filed an opinion dissenting in part and concurring in the result in part, post, p. 420 U. S. 563. WHITE, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 420 U. S. 564. REHNQUIST, J., filed a dissenting opinion, post, p. 420 U. S. 570.

1965_48

MR. JUSTICE DOUGLAS delivered the opinion of the Court.These are suits by Virginia residents to have declared unconstitutional Virginia's poll tax. [Footnote 1] The three-judge Page 383 U. S. 665 District Court, feeling bound by our decision in Breedlove v. Suttles, 302 U. S. 277, dismissed the complaint. See 240 F. Supp. 270. The cases came here on appeal and we noted probable jurisdiction. 380 U.S. 930, 380 U. S. 382 U.S. 806.While the right to vote in federal elections is conferred by Art. I, § 2, of the Constitution (United States v. Classic, 313 U. S. 299, 313 U. S. 314-315), the right to vote in state elections is nowhere expressly mentioned. It is argued that the right to vote in state elections is implicit, particularly by reason of the First Amendment, and that it may not constitutionally be conditioned upon the payment of a tax or fee. Cf. Murdock v. Pennsylvania, 319 U. S. 105, 319 U. S. 113. [Footnote 2] We do not stop to canvass the relation between voting and political expression. For it is enough to say that, once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. That is to say, the right of suffrage"is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed."Lassiter v. Northampton Election Board, 360 U. S. 45, 360 U. S. 51. We were speaking there of a state literacy test which we sustained, warning that the result would be different if a literacy test, fair on its face, were used to discriminate Page 383 U. S. 666 against a class. [Footnote 3] Id. at 360 U. S. 53. But the Lassiter case does not govern the result here, because, unlike a poll tax, the "ability to read and write . . . has some relation to standards designed to promote intelligent use of the ballot." Id. at 360 U. S. 51.We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. [Footnote 4] Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate. Thus, without questioning the power of a State to impose reasonable residence restrictions on the availability of the ballot (see Pope v. Williams, 193 U. S. 621), we Page 383 U. S. 667 held in Carrington v. Rash, 380 U. S. 89, that a State may not deny the opportunity to vote to a bona fide resident merely because he is a member of the armed services."By forbidding a soldier ever to controvert the presumption of non-residence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment."Id. at 380 U. S. 96. And see Louisiana v. United States, 380 U. S. 145. Previously we had said that neither homesite nor occupation "affords a permissible basis for distinguishing between qualified voters within the State." Gray v. Sanders, 372 U. S. 368, 372 U. S. 380. We think the same must be true of requirements of wealth or affluence or payment of a fee.Long ago, in Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 370, the Court referred to "the political franchise of voting" as a "fundamental political right, because preservative of all rights." Recently, in Reynolds v. Sims, 377 U. S. 533, 377 U. S. 561-562, we said,"Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized."There we were considering charges that voters in one part of the State had greater representation per person in the State Legislature than voters in another part of the State. We concluded:"A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is an essential part of the concept of a government of laws, and not men. This is at the heart of Lincoln's vision of 'government of the people, by the people, [and] for the people.' The Equal Protection Clause Page 383 U. S. 668 demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races."Id. at 377 U.S. 568.We say the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen's vote on account of his economic status or other such factors, by analogy, bars a system which excludes those unable to pay a fee to vote or who fail to pay.It is argued that a State may exact fees from citizens for many different kinds of licenses; that, if it can demand from all an equal fee for a driver's license, [Footnote 5] it can demand from all an equal poll tax for voting. But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race (Korematsu v. United States, 323 U. S. 214, 323 U. S. 216), are traditionally disfavored. See Edwards v. California, 314 U. S. 160, 314 U. S. 184-185 (Jackson, J., concurring); Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353. To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context -- that is, as a condition of obtaining a ballot -- the requirement of fee paying causes an "invidious" discrimination (Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541) that runs afoul of the Equal Protection Clause. Levy "by the poll," as stated in Page 383 U. S. 669 Breedlove v. Suttles, supra, at 302 U. S. 281, is an old familiar form of taxation, and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as "a prerequisite of voting." Id. at 302 U. S. 283. To that extent the Breedlove case is overruled.We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment "does not enact Mr. Herbert Spencer's Social Statics" (Lochner v. New York, 198 U. S. 45, 198 U. S. 75). Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. See Malloy v. Hogan, 378 U. S. 1, 378 U. S. 5-6. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. This Court, in 1896, held that laws providing for separate public facilities for white and Negro citizens did not deprive the latter of the equal protection and treatment that the Fourteenth Amendment commands. Plessy v. Ferguson, 163 U. S. 537. Seven of the eight Justices then sitting subscribed to the Court's opinion, thus joining in expressions of what constituted unequal and discriminatory treatment that sound strange to a contemporary ear. [Footnote 6] When, in 1954 -- more than a half-century later -- we repudiated the "separate-but-equal" doctrine of Plessy Page 383 U. S. 670 as respects public education [Footnote 7] we stated:"In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written."Brown v. Board of Education, 347 U. S. 483, 347 U. S. 492.In a recent searching reexamination of the Equal Protection Clause, we held, as already noted, that "the opportunity for equal participation by all voters in the election of state legislators" is required. [Footnote 8] Reynolds v. Sims, supra, at 377 U.S. 566. We decline to qualify that principle by sustaining this poll tax. Our conclusion, like that, in Reynolds v. Sims, is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.We have long been mindful that, where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. See, e.g., Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541; Reynolds v. Sims, 377 U. S. 533, 377 U. S. 561-562; Carrington v. Rash, supra; Baxstrom v. Herold, ante p. 383 U. S. 107; Cox v. Louisiana, 379 U. S. 536, 379 U. S. 580-581 (BLACK, J., concurring).Those principles apply here. For, to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.Reversed

U.S. Supreme CourtHarper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)Harper v. Virginia Board of ElectionsNo. 48Argued January 25-26, 1966Decided March 24, 1966*383 U.S. 663SyllabusAppellants, Virginia residents, brought this action to have Virginia's poll tax declared unconstitutional. The three-judge District Court dismissed the complaint on the basis of Breedlove v. Suttles, 302 U. S. 277.Held: A State's conditioning of the right to vote on the payment of a fee or tax violates the Equal Protection Clause of the Fourteenth Amendment. Breedlove v. Suttle, supra, pro tanto overruled. Pp. 383 U. S. 665-670.(a) Once the franchise is granted to the electorate, lines which determine who may vote may not be drawn so as to cause invidious discrimination. Pp. 383 U. S. 665-667.(b) Fee payments or wealth, like race, creed, or color, are unrelated to the citizen's ability to participate intelligently in the electoral process. Pp. 383 U. S. 666-668.(c) The interest of the State, when it comes to voting registration, is limited to the fixing of standards related to the applicant's qualifications as a voter. P. 383 U. S. 668.(d) Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored. P. 383 U. S. 668.(e) Classifications which might impinge on fundamental rights and liberties -- such as the franchise -- must be closely scrutinized. P. 383 U. S. 670.240 F. Supp. 270, reversed. Page 383 U. S. 664

1998_97-1121

JUSTICE O'CONNOR, joined by JUSTICE BREYER, concluded that, as construed by the Illinois Supreme Court, the Chicago ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement officers; in particular, it fails to provide any standard by which police can judge whether an individual has an "apparent purpose." This vagueness alone provides a sufficient ground for affirming the judgment below, and there is no need to consider the other issues briefed by the parties and addressed by the plurality. It is important to courts and legislatures alike to characterize more clearly the narrow scope of the Court's holding. Chicago still has reasonable alternatives to combat the very real threat posed by gang intimidation and violence, including, e. g., adoption of laws that directly prohibit the congregation of gang members to intimidate residents, or the enforcement of existing laws with that effect. Moreover, the ordinance could have been construed more narrowly to avoid the vagueness problem, by, e. g., adopting limitations that restrict the ordinance's criminal penalties to gang members or interpreting the term "apparent purpose" narrowly and in light of the Chicago City Council's findings. This Court, however, cannot impose a limiting construction that a state supreme court has declined to adopt. See, e. g., Kolender v. Lawson, 461 U. S. 352, 355-356, n. 4. The Illinois Supreme Court misapplied this Court's precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156, to the extent it read them as requiring it to hold the ordinance vague in all of its applications. Pp. 64-69.JUSTICE KENNEDY concluded that, as interpreted by the Illinois Supreme Court, the Chicago ordinance unconstitutionally reaches a broad range of innocent conduct, and, therefore, is not necessarily saved by the requirement that the citizen disobey a dispersal order before there is a violation. Although it can be assumed that disobeying some police commands will subject a citizen to prosecution whether or not the citizen knows why the order is given, it does not follow that any unexplained police order must be obeyed without notice of its lawfulness. The predicate of a dispersal order is not sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to such an order based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose. Pp. 69-70.JUSTICE BREYER concluded that the ordinance violates the Constitution because it delegates too much discretion to the police, and it is not saved by its limitations requiring that the police reasonably believe that the person ordered to disperse (or someone accompanying him) is a gang44Syllabusmember, and that he remain in the public place "with no apparent purpose." Nor does it violate this Court's usual rules governing facial challenges to forbid the city to apply the unconstitutional ordinance in this case. There is no way to distinguish in the ordinance's terms between one application of unlimited police discretion and another. It is unconstitutional, not because a policeman applied his discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. See Lanzetta v. New Jersey, 306 U. S. 451, 453. Contrary to JUSTICE SCALIA'S suggestion, the ordinance does not escape facial invalidation simply because it may provide fair warning to some individual defendants that it prohibits the conduct in which they are engaged. This ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide sufficient minimal standards to guide the police. See Coates v. Cincinnati, 402 U. S. 611, 614. Pp. 70-73.STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which SOUTER and GINSBURG, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined, post, p. 64. KENNEDY, J., post, p. 69, and BREYER, J., post, p. 70, filed opinions concurring in part and concurring in the judgment. SCALIA, J., filed a dissenting opinion, post, p. 73. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 98.Lawrence Rosenthal argued the cause for petitioner.With him on the briefs were Brian L. Crowe, Benna Ruth Solomon, Timothy W Joranko, and Julian N. Henriques, Jr.Harvey Grossman argued the cause for respondents.With him on the brief were Rita Fry, James H. Reddy, Richard J. O'Brien, Jr., Barbara O'Toole, and Steven R. Shapiro. **Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, and James A. Feldman; for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama,45JUSTICE STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which JUSTICE SOUTER and JUSTICE GINSBURG join.In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gangBruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E. Lungren of California, 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, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, 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, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Carlos Lugo-Fiol of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Julio A. Brady of the Virgin Islands, and Mark Q Earley of Virginia; for the Center for the Community Interest by Richard K. Willard and Roger L. Conner; for the Chicago Neighborhood Organizations by Michele L. Odorizzi and Jeffrey W Sarles; for the Los Angeles County District Attorney by Gil Garcetti pro se, and Brent Dail Riggs; for the National District Attorneys Association et al. by Kristin Linsley Myles, Daniel P. Collins, William L. Murphy, and Wayne W Schmidt; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; and for the U. S. Conference of Mayors et al. by Richard Ruda, Miguel A. Estrada, and Mark A. Perry.Briefs of amicus curiae urging affirmance were filed for the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A. Greenberg; for the National Association of Criminal Defense Lawyers by David M. Porter; for the N ational Black Police Association et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, Laura E. Hankins, Marc Q Beem, and Diane F. Klotnia; for the National Law Center on Homelessness & Poverty et al. by Robert M. Bruskin; and for See Forever/the Maya Angelou Public Charter School et al. by Louis R. Cohen, John Payton, and James Forman, Jr.46members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.IBefore the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.1The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, "'the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.'" 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Furthermore, the council stated that gang members "'establish control over identifiable areas ... by loitering in those areas and intimidating others from entering those areas; and ... [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present .... '" Ibid. It further found that "'loitering in public places by1 The findings are quoted in full in the opinion of the Supreme Court of Illinois. 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Some of the evidence supporting these findings is quoted in JUSTICE THOMAS' dissenting opinion. Post, at 100-101.47criminal street gang members creates a justifiable fear for the safety of persons and property in the area'" and that "'[a]ggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear.'" Moreover, the council concluded that the city "'has an interest in discouraging all persons from loitering in public places with criminal gang members.'" Ibid.The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "'public place'" is a "'criminal street gang membe[r].'" Second, the persons must be "'loitering,'" which the ordinance defines as "'remain[ing] in anyone place with no apparent purpose.'" Third, the officer must then order "'all'" of the persons to disperse and remove themselves "'from the area.'" Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. Ibid.22 The ordinance states in pertinent part:"(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section."(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang."(c) As used in this Section:"(1) 'Loiter' means to remain in anyone place with no apparent purpose. "(2) 'Criminal street gang' means any ongoing organization, associationin fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members48Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement.3 That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers,4 and establish detailed criteria for defining street gangs and membership in such gangs. I d., at 66a-67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the desig-individually or collectively engage in or have engaged in a pattern of criminal gang activity."(5) 'Public place' means the public way and any other location open to the public, whether publicly or privately owned."(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both."In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1-4-120 of this Code." Chicago Municipal Code § 8-4-015 (added June 17, 1992), reprinted in App. to Pet. for Cert. 61a-63a.3 As the Illinois Supreme Court noted, during the hearings preceding the adoption of the ordinance, "representatives of the Chicago law and police departments informed the city counsel that any limitations on the discretion police have in enforcing the ordinance would be best developed through police policy, rather than placing such limitations into the ordinance itself." 177 Ill. 2d, at 446, 687 N. E. 2d, at 58-59.4 Presumably, these officers would also be able to arrest all nongang members who violate the ordinance.49nated areas." Id., at 68a-69a. The city, however, does not release the locations of these "designated areas" to the public.5IIDuring the three years of its enforcement,6 the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.7 In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid.8 In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct5 Tr. of Oral Arg. 22-23.6 The city began enforcing the ordinance on the effective date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr. of Oral Arg. 43.7 Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. City of Chicago, R. Daley & T. Hillard, Gang and Narcotic Related Violent Crime: 1993-1997, p. 7 (June 1998).The city believes that the ordinance resulted in a significant decline in gang-related homicides. It notes that in 1995, the last year the ordinance was enforced, the gang-related homicide rate fell by 26%. In 1996, after the ordinance had been held invalid, the gang-related homicide rate rose 11 %. Pet. for Cert. 9, n. 5. However, gang-related homicides fell by 19% in 1997, over a year after the suspension of the ordinance. Daley & Hillard, at 5. Given the myriad factors that influence levels of violence, it is difficult to evaluate the probative value of this statistical evidence, or to reach any firm conclusion about the ordinance's efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L. Rev. 291, 296 (1998) (describing the "hotly contested debate raging among ... experts over the causes of the decline in crime in New York City and nationally").8 See Poulos, Chicago's Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Calif. L. Rev. 379, 384, n. 26 (1995).50is prohibited, and it encourages arbitrary and capricious enforcement by police." 9The Illinois Appellate Court affirmed the trial court's ruling in the Youkhana case,10 consolidated and affirmed other pending appeals in accordance with Youkhana,l1 and reversed the convictions of respondents Gutierrez, Morales, and others.12 The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.13The Illinois Supreme Court affirmed. It held "that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." Ibid.In support of its vagueness holding, the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated9 Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 45a. The court also concluded that the ordinance improperly authorized arrest on the basis of a person's status instead of conduct and that it was facially overbroad under the First Amendment to the Federal Constitution and Art. I, § 5, of the Illinois Constitution. Id., at 59a.10 Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995).11 Chicago v. Ramsey, Nos. 1-93-4125 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 39a.12 Chicago v. Morales, Nos. 1-93-4039 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 37a.13 Chicago v. Youkhana, 277 Ill. App. 3d, at 106, 660 N. E. 2d, at 38; id., at 112, 660 N. E. 2d, at 41; id., at 113, 660 N. E. 2d, at 42.51to cause harm.14 "Moreover, the definition of 'loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." Id., at 451-452, 687 N. E. 2d, at 60-61. Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity." 15We granted certiorari, 523 U. S. 1071 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.IIIThe basic factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods." 16 The findings in the ordinance explain that it was motivated by these concerns. We have no doubt14 "The ordinance defines 'loiter' to mean 'to remain in anyone place with no apparent purpose.' Chicago Municipal Code § 8-4-015(c)(1) (added June 17, 1992). People with entirely legitimate and lawful purposes will not always be able to make their purposes apparent to an observing police officer. For example, a person waiting to hail a taxi, resting on a corner during a jog, or stepping into a doorway to evade a rain shower has a perfectly legitimate purpose in all these scenarios; however, that purpose will rarely be apparent to an observer." 177 Ill. 2d, at 451452, 687 N. E. 2d, at 60-61.15 It stated: "Although the proscriptions of the ordinance are vague, the city council's intent in its enactment is clear and unambiguous. The city has declared gang members a public menace and determined that gang members are too adept at avoiding arrest for all the other crimes they commit. Accordingly, the city council crafted an exceptionally broad ordinance which could be used to sweep these intolerable and objectionable gang members from the city streets." Id., at 458, 687 N. E. 2d, at 64.16 Brief for Petitioner 14.52Opinion of STEVENS, J.that a law that directly prohibited such intimidating conduct would be constitutional,17 but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague.We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines.18 First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U. S. 601, 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U. S. 352, 358 (1983).While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct17 In fact the city already has several laws that serve this purpose. See, e. g., Ill. Compo Stat., ch. 720 §§ 5/12-6 (1998) (intimidation); 570/405.2 (streetgang criminal drug conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism Omnibus Prevention Act); 5/25-1 (mob action). Deputy Superintendent Cooper, the only representative of the police department at the Committee on Police and Fire hearing on the ordinance, testified that, of the kinds of behavior people had discussed at the hearing, "90 percent of those instances are actually criminal offenses where people, in fact, can be arrested." Record, Appendix II to plaintiff's Memorandum in Opposition to Motion to Dismiss 182 (Tr. of Proceedings, Chicago City Council Committee on Police and Fire, May 18, 1992).18 Brief for Petitioner 17.53protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989).On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment. 19 We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972).2019 See Brief for United States as Amicus Curiae 23: "We do not doubt that, under the Due Process Clause, individuals in this country have significant liberty interests in standing on sidewalks and in other public places, and in traveling, moving, and associating with others." The city appears to agree, at least to the extent that such activities include "social gatherings." Brief for Petitioner 21, n. 13. Both JUSTICE SCALIA, post, at 83-86 (dissenting opinion), and JUSTICE THOMAS, post, at 102-106 (dissenting opinion), not only disagree with this proposition, but also incorrectly assume (as the city does not, see Brief for Petitioner 44) that identification of an obvious liberty interest that is impacted by a statute is equivalent to finding a violation of substantive due process. See n. 35, infra.20 Petitioner cites historical precedent against recognizing what it describes as the "fundamental right to loiter." Brief for Petitioner 12. While antiloitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality. In 16th-century England, for example, the" 'Slavery acts'" provided for a 2-year enslavement period54Opinion of STEVENS, J.Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).21for anyone who '''liveth idly and loiteringly, by the space of three days.''' Note, Homelessness in a Modern Urban Setting, 10 Ford. Urb. L. J. 749, 754, n. 17 (1982). In Papachristou we noted that many American vagrancy laws were patterned on these "Elizabethan poor laws." 405 U. S., at 161-162. These laws went virtually unchallenged in this country until attorneys became widely available to the indigent following our decision in Gideon v. Wainwright, 372 U. S. 335 (1963). See Recent Developments, Constitutional Attacks on Vagrancy Laws, 20 Stan. L. Rev. 782, 783 (1968). In addition, vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery. In 1865, for example, Alabama broadened its vagrancy statute to include "'any runaway, stubborn servant or child'" and "'a laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.''' T. Wilson, Black Codes of the South 76 (1965). The Reconstruction-era vagrancy laws had especially harsh consequences on African-American women and children. L. Kerber, No Constitutional Right to be Ladies:Women and the Obligations of Citizenship 50-69 (1998). Neither this history nor the scholarly compendia in JUSTICE THOMAS' dissent, post, at 102-106, persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause.21 The freewheeling and hypothetical character of JUSTICE SCALIA'S discussion of liberty is epitomized by his assumption that citizens of Chicago, who were once "free to drive about the city" at whatever speed they wished, were the ones who decided to limit that freedom by adopting a speed limit. Post, at 73. History tells quite a different story.In 1903, the Illinois Legislature passed "An Act to regulate the speed of automobiles and other horseless conveyances upon the public streets, roads, and highways of the state of Illinois." That statute, with some exceptions, set a speed limit of 15 miles per hour. See Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035 (1905). In 1900, there were 1,698,575 citizens of Chicago, 1 Twelfth Census of the United States 430 (1900) (Table 6), but55There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52,82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, 395 (1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a law, it is subject to facial attack.22only 8,000 cars (both private and commercial) registered in the entire United States. See Ward's Automotive Yearbook 230 (1990). Even though the number of cars in the country had increased to 77,400 by 1905, ibid., it seems quite clear that it was pedestrians, rather than drivers, who were primarily responsible for Illinois' decision to impose a speed limit.22 The burden of the first portion of JUSTICE SCALIA'S dissent is virtually a facial challenge to the facial challenge doctrine. See post, at 74-83. He first lauds the "clarity of our general jurisprudence" in the method for assessing facial challenges and then states that the clear import of our cases is that, in order to mount a successful facial challenge, a plaintiff must "establish that no set of circumstances exists under which the Act would be valid." See post, at 78-79 (emphasis deleted); United States v. Salerno, 481 U. S. 739, 745 (1987). To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself (even though the defendants in that case did not claim that the statute was unconstitutional as applied to them, see id., at 745, n. 3, the Court nevertheless entertained their facial challenge). Since we, like the Illinois Supreme Court, conclude that vagueness permeates the ordinance, a facial challenge is appropriate.We need not, however, resolve the viability of Salerno's dictum, because this case comes to us from a state-not a federal-court. When asserting56Opinion of STEVENS, J.Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.IV"It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits .... " Giaccio v. Pennsylvania, 382 U. S. 399, 402-403 (1966). The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance-"to remain in anyone place with no apparent purpose"-does not. It is difficult to imagine howa facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955 (1984). When a state court has reached the merits of a constitutional claim, "invoking prudential limitations on [the respondent's] assertion of jus tertii would serve no functional purpose." City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239, 243 (1983) (internal quotation marks omitted).Whether or not it would be appropriate for federal courts to apply the Salerno standard in some cases-a proposition which is doubtful-state courts need not apply prudential notions of standing created by this Court. See ASARCO Inc. v. Kadish, 490 U. S. 605, 618 (1989). JUSTICE SCALIA'S assumption that state courts must apply the restrictive Salerno test is incorrect as a matter of law; moreover it contradicts "essential principles of federalism." See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 284 (1994).57any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose? 23Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm.24 Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent.25 However, state23 The Solicitor General, while supporting the city's argument that the ordinance is constitutional, appears to recognize that the ordinance cannot be read literally without invoking intractable vagueness concerns. "[T]he purpose simply to stand on a corner cannot be an 'apparent purpose' under the ordinance; if it were, the ordinance would prohibit nothing at all." Brief for United States as Amicus Curiae 12-13.24177 Ill. 2d, at 452, 687 N. E. 2d, at 61. One of the trial courts that invalidated the ordinance gave the following illustration: "Suppose a group of gang members were playing basketball in the park, while waiting for a drug delivery. Their apparent purpose is that they are in the park to play ball. The actual purpose is that they are waiting for drugs. Under this definition of loitering, a group of people innocently sitting in a park discussing their futures would be arrested, while the 'basketball players' awaiting a drug delivery would be left alone." Chicago v. Youkhana, Nos. 93 MCr 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 48a-49a.25 See, e. g., Tacoma v. Luvene, 118 Wash. 2d 826, 827 P. 2d 1374 (1992) (upholding ordinance criminalizing loitering with purpose to engage in drug-related activities); People v. Superior Court, 46 Cal. 3d 381,394-395, 758 P. 2d 1046, 1052 (1988) (upholding ordinance criminalizing loitering for the purpose of engaging in or soliciting lewd act).58Opinion of STEVENS, J.courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime.26The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do." 27 We find this response unpersuasive for at least two reasons.First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.28 If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87, 9026 See, e. g., State v. Richard, 108 Nev. 626, 627, n. 2, 836 P. 2d 622, 623, n. 2 (1992) (striking down statute that made it unlawful "for any person to loiter or prowl upon the property of another without lawful business with the owner or occupant thereof").27 Brief for Petitioner 31.28 In this way, the ordinance differs from the statute upheld in Colten v.Kentucky, 407 U. S. 104, 110 (1972). There, we found that the illegality of the underlying conduct was clear. "Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under ... Kentucky's statute if he fails to obey an order to move on." Ibid.59(1965).29 Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.30Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." Connally v. General Constr. Co., 269 U. S. 385 (1926). We remarked in Connally that "[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles." Id., at 395.Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance uncon-29 "Literally read ... this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration." 382 U. S., at 90.30 As we have noted in a similar context: "If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute." Wright v. Georgia, 373 U. S. 284, 292 (1963).60stitutionally vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971).vThe broad sweep of the ordinance also violates "'the requirement that a legislature establish minimal guidelines to govern law enforcement.'" Kolender v. Lawson, 461 U. S., at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy So sa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she mayindeed, she "shall" -order them to disperse.Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it "necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat." Kolender v. Lawson, 461 U. S., at 360 (internal quotation marks omitted). As we discussed in the context of fair no-61tice, see supra, at 56-60, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as "to remain in anyone place with no apparent purpose."As the Illinois Supreme Court interprets that definition, it "provides absolute discretion to police officers to decide what activities constitute loitering." 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. We have no authority to construe the language of a state statute more narrowly than the construction given by that State's highest court.31 "The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined." Smiley v. Kansas, 196 U. S. 447, 455 (1905).Nevertheless, the city disputes the Illinois Supreme Court's interpretation, arguing that the text of the ordinance limits the officer's discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang.Even putting to one side our duty to defer to a state court's construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving-that is, to activity that would not constitute loitering under any possible definition of the term-does not even address the question of how much discretion the police enjoy in deciding which stationary per-31 This critical fact distinguishes this case from Boos v. Barry, 485 U. S. 312, 329-330 (1988). There, we noted that the text of the relevant statute, read literally, may have been void for vagueness both on notice and on discretionary enforcement grounds. We then found, however, that the Court of Appeals had "provided a narrowing construction that alleviates both of these difficulties." Ibid.62sons to disperse under the ordinance.32 Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The "no apparent purpose" standard for making that decision is inherently subjective because its application depends on whether some purpose is "apparent" to the officer on the scene.Presumably an officer would have discretion to treat some purposes-perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening-as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent.It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect,33 or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members.34 It applies to everyone in the city32 It is possible to read the mandatory language of the ordinance and conclude that it affords the police no discretion, since it speaks with the mandatory "shall." However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.33JUSTICE THOMAS' dissent overlooks the important distinction between this ordinance and those that authorize the police "to order groups of individuals who threaten the public peace to disperse." See post, at 107.34 Not all of the respondents in this case, for example, are gang members.The city admits that it was unable to prove that Morales is a gang member but justifies his arrest and conviction by the fact that Morales admitted63who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member.Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council's findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose.Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the "vast amount of discretion" granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U. S. 566,575 (1974). That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city"that he knew he was with criminal street gang members." Reply Brief for Petitioner 23, n. 14. In fact, 34 of the 66 respondents in this case were charged in a document that only accused them of being in the presence of a gang member. Tr. of Oral Arg. 34, 58.64Opinion of O'CONNOR, J.safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be.VIIn our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police "to meet constitutional standards for definiteness and clarity."35 177 Ill. 2d, at 459, 687 N. E. 2d, at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. "We are mindful that the preservation of liberty depends in part on the maintenance of social order." Houston v. Hill, 482 U. S. 451, 471-472 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.Accordingly, the judgment of the Supreme Court of Illinois isAffirmed

OCTOBER TERM, 1998SyllabusCITY OF CHICAGO v. MORALES ET AL.CERTIORARI TO THE SUPREME COURT OF ILLINOISNo.97-1121. Argued December 9, 1998-Decided June 10, 1999Chicago's Gang Congregation Ordinance prohibits "criminal street gang members" from loitering in public places. Under the ordinance, if a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse. Anyone who does not promptly obey such an order has violated the ordinance. The police department's General Order 92-4 purports to limit officers' enforcement discretion by confining arrest authority to designated officers, establishing detailed criteria for defining street gangs and membership therein, and providing for designated, but publicly undisclosed, enforcement areas. Two trial judges upheld the ordinance's constitutionality, but 11 others ruled it invalid. The Illinois Appellate Court affirmed the latter cases and reversed the convictions in the former. The State Supreme Court affirmed, holding that the ordinance violates due process in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties.Held: The judgment is affirmed.177 Ill. 2d 440, 687 N. E. 2d 53, affirmed.JUSTICE STEVENS delivered the opinion of the Court with respect to Parts I, II, and V, concluding that the ordinance's broad sweep violates the requirement that a legislature establish minimal guidelines to govern law enforcement. Kolender v. Lawson, 461 U. S. 352, 358. The ordinance encompasses a great deal of harmless behavior: In any public place in Chicago, persons in the company of a gang member "shall" be ordered to disperse if their purpose is not apparent to an officer. Moreover, the Illinois Supreme Court interprets the ordinance's loitering definition-"to remain in anyone place with no apparent purpose"-as giving officers absolute discretion to determine what activities constitute loitering. See id., at 359. This Court has no authority to construe the language of a state statute more narrowly than the State's highest court. See Smiley v. Kansas, 196 U. S. 447, 455. The three features of the ordinance that, the city argues, limit the officer's discretion-(l) it does not permit issuance of a dispersal order to anyone who is moving along or who has an apparent purpose; (2) it does not permit an arrest if individuals obey a dispersal order; and (3) no order can issue unless the officer reasonably believes that one of the loiterers is a gang mem-42Syllabusber-are insufficient. Finally, the Illinois Supreme Court is correct that General Order 92-4 is not a sufficient limitation on police discretion. See Smith v. Goguen, 415 U. S. 566, 575. Pp. 60-64.JUSTICE STEVENS, joined by JUSTICE SOUTER and JUSTICE GINSBURG, concluded in Parts III, IV, and VI:1. It was not improper for the state courts to conclude that the ordinance, which covers a significant amount of activity in addition to the intimidating conduct that is its factual predicate, is invalid on its face. An enactment may be attacked on its face as impermissibly vague if, inter alia, it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty. Kolender v. Lawson, 461 U. S., at 358. The freedom to loiter for innocent purposes is part of such "liberty." See, e. g., Kent v. Dulles, 357 U. S. 116, 126. The ordinance's vagueness makes a facial challenge appropriate. This is not an enactment that simply regulates business behavior and contains a scienter requirement. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499. It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, 395, and infringes on constitutionally protected rights, see id., at 391. Pp.51-56.2. Because the ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague. See, e. g., Coates v. Cincinnati, 402 U. S. 611, 614. The term "loiter" may have a common and accepted meaning, but the ordinance's definition of that term-"to remain in anyone place with no apparent purpose" -does not. It is difficult to imagine how any Chicagoan standing in a public place with a group of people would know if he or she had an "apparent purpose." This vagueness about what loitering is covered and what is not dooms the ordinance. The city's principal response to the adequate notice concern-that loiterers are not subject to criminal sanction until after they have disobeyed a dispersal orderis unpersuasive for at least two reasons. First, the fair notice requirement's purpose is to enable the ordinary citizen to conform his or her conduct to the law. See Lanzetta v. New Jersey, 306 U. S. 451, 453. A dispersal order, which is issued only after prohibited conduct has occurred, cannot retroactively provide adequate notice of the boundary between the permissible and the impermissible applications of the ordinance. Second, the dispersal order's terms compound the inadequacy of the notice afforded by the ordinance, which vaguely requires that the officer "order all such persons to disperse and remove themselves from the area," and thereby raises a host of questions as to the duration and distinguishing features of the loiterers' separation. Pp. 56-60.43Full Text of Opinion

1961_159

MR. JUSTICE HARLAN delivered the opinion of the Court.This is a habeas corpus proceeding instituted in the District Court by the petitioner, presently confined in Saint Elizabeth's Hospital for the insane pursuant to a commitment under D.C.Code, § 24-301(d), to test the legality of his detention. The District Court, holding that petitioner had been unlawfully committed, directed his release from custody unless civil commitment proceedings (D.C.Code, § 21-310) were begun within 10 days of the court's order. The Court of Appeals, sitting en banc, reversed by a divided vote. 109 U.S.App.D.C. 404, 288 F.2d 388. Since the petition for certiorari raised important questions regarding the procedure for confining the criminally insane in the District of Columbia and suggested possible constitutional infirmities in § 24-301(d) as applied in the circumstances of this case, we granted the writ. 366 U.S. 958.Two informations filed in the Municipal Court for the District of Columbia on November 6, 1959, charged petitioner with having violated D.C.Code, § 22-1410 by drawing and negotiating checks in the amount of $50 each with knowledge that he did not have sufficient funds or credit with the drawee bank for payment. On the same day, petitioner appeared in Municipal Court to answer these charges, and a plea of not guilty was recorded. He was thereupon committed under D.C.Code, § 24-301(a) to the District of Columbia General Hospital for a mental examination to determine his competence to stand trial. [Footnote 1] On December 4, 1959, the Assistant Chief Psychiatrist of Page 369 U. S. 707 the Hospital reported that petitioner's mental condition was such that he was then "of unsound mind, unable to adequately understand the charges and incapable of assisting counsel in his own defense." The case was continued while petitioner was given treatment at the General Hospital.On December 28, 1959, the Assistant Chief Psychiatrist sent a letter to the court advising that petitioner had"shown some improvement, and at this time appears able to understand the charges against him, and to assist counsel in his own defense."This communication also noted that it was the psychiatrist's opinion that petitioner "was suffering from a mental disease, i.e., a manic depressive psychosis, at the time of the crime charged," such that the crime "would be a product of this mental disease." As for petitioner's current condition, the psychiatrist added that petitioner "appears to be in an early stage of recovery from manic depressive psychosis," but that it was "possible that he may have further lapses of judgment in the near future." He stated that it "would be advisable for him to have a period of further treatment in a psychiatric hospital."Petitioner was brought to trial the following day in the Municipal Court before a judge without a jury. The record before us contains no transcript of the proceedings, [Footnote 2] but it is undisputed that petitioner, represented by counsel, sought at that time to withdraw the earlier plea of not guilty and to plead guilty to both informations. The trial judge refused to allow the change of plea, apparently on the basis of the Hospital's report that petitioner's commission of the alleged offenses was the product of mental illness. Page 369 U. S. 708At the trial, one of the prosecution's witnesses, a physician representing the General Hospital's Psychiatric Division, testified, over petitioner's objection, that petitioner's crimes had been committed as a result of mental illness. Although petitioner never claimed that he had not been mentally responsible when the offenses were committed, and presented no evidence to support an acquittal by reason of insanity, the trial judge concluded that petitioner was "not guilty on the ground that he was insane at the time of the commission of the offense." [Footnote 3] The court then ordered that petitioner be committed to Saint Elizabeth's Hospital as prescribed by D.C.Code, § 24-301(d), which reads:"(d) If any person tried upon an indictment or information for an offense, or tried in the juvenile court of the District of Columbia for an offense, is acquitted solely on the ground that he was insane at the time of its commission, the court shall order such person to be confined in a hospital for the mentally ill."There can be no doubt as to the effect of this provision with respect to a defendant who has asserted a defense of insanity at some point during the trial. By its plain terms, it directs confinement in a mental hospital of any criminal defendant in the District of Columbia who is "acquitted solely on the ground" that his offense was committed while he was mentally irresponsible, and forecloses the trial judge from exercising any discretion in this regard. Nor does the statute require a finding by the trial judge or jury, or by a medical board, with respect to the accused's mental health on the date of the judgment of acquittal. The sole necessary and sufficient condition for bringing the compulsory commitment provision into Page 369 U. S. 709 play is that the defendant be found not guilty of the crime with which he is charged because of insanity "at the time of its commission." [Footnote 4] Petitioner does not contend that the statute was misinterpreted in these respects.Petitioner maintains, however, that his confinement is illegal for a variety of other reasons, among which is the assertion that the "mandatory commitment" provision, as applied to an accused who protests that he is presently sane and that the crime he committed was not the product of mental illness, deprives one so situated of liberty without due process of law. [Footnote 5] We find it unnecessary to consider Page 369 U. S. 710 this and other constitutional claims concerning the fairness of the Municipal Court proceeding, since we read § 24-301(d) as applicable only to a defendant acquitted on the ground of insanity who has affirmatively relied upon a defense of insanity, and not to one, like the petitioner, who has maintained that he was mentally responsible when the alleged offense was committed. [Footnote 6]The decisions of this Court have repeatedly warned against the dangers of an approach to statutory construction which confines itself to the bare words of a statute, e.g., Church of the Holy Trinity v. United States, 143 U. S. 457, 143 U. S. 459-462; Markham v. Cabell, 326 U. S. 404, 326 U. S. 409, for "literalness may strangle meaning," Utah Junk Co. v. Porter, 328 U. S. 39, 328 U. S. 44. Heeding that principle, we conclude that to construe § 24-301(d) as applying only to criminal defendants who have interposed a defense of insanity is more consistent with the general pattern of laws governing the confinement of the mentally ill in the District of Columbia, and with the congressional policy that impelled the enactment of this mandatory commitment provision, than would be a literal reading of the section. That construction finds further support in the rule Page 369 U. S. 711 that a statute should be interpreted, if fairly possible, in such a way as to free it from not insubstantial constitutional doubts. E.g., United States v. Jin Fuey Moy, 241 U. S. 394, 241 U. S. 401; International Assn. of Machinists v. Street, 367 U. S. 740, 367 U. S. 749. Such doubts might arise in this case were the Government's construction of § 24-301(d) to be accepted.ITo construe § 24-301(d) as requiring a court, without further proceedings, automatically to commit a defendant who, as in the present case, has competently and advisedly not tendered a defense of insanity to the crime charged and has not been found incompetent at the time of commitment is out of harmony with the awareness that Congress has otherwise shown for safeguarding those suspected of mental incapacity against improvident confinement.Thus, a civil commitment must commence with the filing of a verified petition and supporting affidavits. D.C.Code, § 21-310. This is followed by a preliminary examination by the staff of Saint Elizabeths Hospital, a hearing before the Commission on Mental Health, and then another hearing in the District Court, which must be before a jury if the person being committed demands one. D.C.Code, § 21-311. At both of these hearings, representation by counsel or by a guardian ad litem is necessary. Dooling v. Overholser, 100 U.S.App.D.C. 247, 243 F.2d 825, construing D.C.Code, §§ 21-308, 21-311. The burden of proof is on the party seeking commitment, and it is only if the trier of fact is "satisfied that the alleged insane person is insane" that he may be committed "for the best interests of the public and of the insane person." D.C.Code, § 21-315. [Footnote 7] Page 369 U. S. 712Likewise, Congress has afforded protection from improvident commitment to an accused in a criminal case who appears to the trial court"from the court's own observations, or from prima facie evidence submitted to the court . . . [to be] of unsound mind or . . . mentally incompetent so as to be unable to understand the proceedings against him or properly to assist in his own defense."D.C.Code, § 24-301(a). In such circumstances, preliminary commitment for a "reasonable period" is authorized in order to permit observation and examination. If the medical report shows that the accused is of unsound mind, the court may "commit by order the accused to a hospital for the mentally ill unless the accused or the Government objects." (Emphasis added). In case of objection, there must be a judicial determination with respect to the accused's mental health, and it is only "if the court shall find the accused to be then of unsound mind or mentally incompetent to stand trial" that an order for continued commitment is permissible. Hence, if the accused denies that he is mentally ill, he is entitled to a judicial determination of his present mental state despite the hospital board's certification that he is of unsound mind. And it should be noted that the burden rests with the party seeking commitment to prove that the accused is "then of unsound mind." D.C.Code, § 24-301(a).Considering the present case against this background, we should be slow in our reading of § 24-301(d) to attribute to Congress a purpose to compel commitment of Page 369 U. S. 713 an accused who never throughout the criminal proceedings suggests that he is, or ever was, mentally irresponsible. [Footnote 8] This is the more so when there is kept in mind the contrast between the nature of an acquittal by reason of insanity and the finding of insanity required in other kinds of commitment proceedings. In the District of Columbia, as in all federal courts, an accused"is entitled to an acquittal of the specific crime charged if, upon all the evidence, there is reasonable doubt whether he was capable in law of committing crime."Davis v. United States, 160 U. S. 469, 160 U. S. 484. See, e.g., Isaac v. United States, 109 U.S.App.D.C. 34, 284 F.2d 168. Compare Leland v. Oregon, 343 U. S. 790. Consequently, the trial judge or jury must reach a judgment or verdict of not guilty by reason of insanity even if the evidence as to mental responsibility at the time the offense was committed raises no more than a reasonable doubt of sanity. If § 24-301(d) were taken to apply to petitioner's situation, there would be an anomalous disparity between what Page 369 U. S. 714 § 24-301(d) commands and what § 24-301(a) forbids. On the one hand, § 24-301(d) would compel post-trial commitment upon the suggestion of the Government and over the objection of the accused merely on evidence introduced by the Government that raises a reasonable doubt of the accused's sanity as of the time at which the offense was committed. On the other hand, § 24-301(a) would prohibit pretrial commitment upon the suggestion of the Government and over the objection of the accused, although the record contained an affirmative medical finding of present insanity, unless the Government is able to prove, by a preponderance of the evidence, that the accused is presently of unsound mind.Of course, the post-trial commitment of § 24-301(d) presupposes a determination that the accused has committed the criminal act with which he is charged, whereas pretrial commitment antedates any such finding of guilt. But the fact that the accused has pleaded guilty or that, overcoming some defense other than insanity, the Government has established that he committed a criminal act constitutes only strong evidence that his continued liberty could imperil "the preservation of public peace." It no more rationally justifies his indeterminate commitment to a mental institution on a bare reasonable doubt as to past sanity than would any other cogent proof of possible jeopardy to "the rights of persons and of property" in any civil commitment. Compare note 7 supra.Moreover, the literal construction urged here by the Government is quite out of keeping with the congressional policy that underlies the elaborate procedural precautions included in the civil commitment provisions. It seems to have been Congress' intention to insure that only those who need treatment and may be dangerous are confined; committing a criminal defendant who denies the existence of any mental abnormality merely on the Page 369 U. S. 715 basis of a reasonable doubt as to his condition at some earlier time is surely at odds with this policy.The criminal defendant who chooses to claim that he was mentally irresponsible when his offense was committed is in quite a different position. It is true that he may avoid the ordinary criminal penalty merely by submitting enough evidence of an abnormal mental condition to raise a reasonable doubt of his responsibility at the time of committing the offense. Congress might have thought, however, that, having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternatively, Congress might have considered it appropriate to provide compulsory commitment for those who successfully invoke an insanity defense in order to discourage false pleas of insanity. We need go no further here than to say that such differentiating considerations are pertinent to ascertaining the intended reach of this statutory provision.IIThe enactment of § 24-301(d) in 1955 was the direct result of the change in the standard of criminal responsibility in the District of Columbia wrought by Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862. That decision provoked a congressional reexamination of the laws governing commitment of the criminally insane."Apprehension that Durham would result in a flood of acquittals by reason of insanity and fear that these defendants would be immediately set loose led to agitation for remedial legislation."Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 Yale L.J. 905, 941 (1961). A Committee on Mental Disorder as a Criminal Defense was established Page 369 U. S. 716 by the Council on Law Enforcement in the District of Columbia to inquire into "the substantive and procedural law of the District of Columbia bearing on mental disorder as a defense in a criminal prosecution." S.Rep. No. 1170, 84th Cong., 1st Sess. 1 (1955); H.R.Rep. No. 892, 84th Cong., 1st Sess. 1 (1955). Among its recommendations was a mandatory commitment provision, subsequently enacted as § 24-301(d). The Committee noted that while, under the then existing discretionary commitment statute, [Footnote 9] it had been customary for the court and the appropriate executive official to order the confinement of all those who had been found not guilty solely by reason of insanity, more assurance should be given the public that those so acquitted would not be allowed to be at large until their recovery from past mental illness had been definitely established:"No recent cases have come to the attention of this Committee where a person acquitted in the District of Columbia of a crime on the sole ground of insanity has not been committed to a mental hospital for treatment. Nevertheless, the Committee is of the opinion that the public is entitled to know that, in every case where a person has committed a crime as a result of a mental disease or defect, such person shall be given a period of hospitalization and treatment to guard against imminent recurrence of some criminal act by that person."(Emphasis in the original.) Page 369 U. S. 717"The Committee believes that a mandatory commitment statute would add much to the public's peace of mind, and to the public safety, without impairing the rights of the accused. Where accused has pleaded insanity as a defense to a crime, and the jury has found that the defendant was, in fact, insane at the time the crime was committed, it is just and reasonable in the Committee's opinion that the insanity, once established, should be presumed to continue and that the accused should automatically be confined for treatment until it can be shown that he has recovered."S.Rep. No. 1170, 84th Cong., 1st Sess. 13 (1955); H.R.Rep. No. 892, 84th Cong., 1st Sess. 13 (1955). (Emphasis added.)It is significant to note that, in finding that mandatory commitment would not result in "impairing the rights of the accused," and that it was"just and reasonable . . . that the insanity, once established, should be presumed to continue . . . until it can be shown that . . . [the accused] has recovered,"the Committee Report, which was embraced in the reports of the Senate and House committees on the bill, spoke entirely in terms of one who "has pleaded insanity as a defense to a crime." Certainly such confidence could hardly have been vouchsafed with respect to a defendant who, as in this case, had stoutly denied his mental incompetence at any time. And it is surely straining things to assume that any of the committees had in mind such cases as this, which are presumably rare. [Footnote 10]Nor is it necessary to read § 24-301(d) as an assurance that an accused who requires medical treatment will be Page 369 U. S. 718 hospitalized rather than be confined to jail. Simultaneously with the mandatory commitment provision, Congress enacted the present § 24-302, which permits transfers of mentally ill convicts from penal institutions to hospitals. Consequently, if an accused who pleads guilty is found to be in need of psychiatric assistance, he may be transferred to a hospital following sentence.Finally, it is not necessary to accept the Government's literal reading of § 24-301(d) in order to effectuate Congress' basic concern, in passing this legislation, of reassuring the public. Section 24-301(a) provides a procedure for confining an accused who, though found competent to stand trial, is nonetheless committable as a person of unsound mind. That section permits the trial judge to act "prior to the imposition of sentence or prior to the expiration of any period of probation," if he has reason to believe that the accused "is of unsound mind or is mentally incompetent so as to be unable to understand the proceedings against him." (Emphasis added.) The statute provides for a preliminary examination by a hospital staff, and then,"if the court shall find the accused to be then of unsound mind or mentally incompetent to stand trial, the court shall order the accused confined to a hospital for the mentally ill. [Footnote 11]"(Emphasis added.) Page 369 U. S. 719 This inquiry, therefore, is not limited to the accused's competence to stand trial; the judge may consider, as well, whether the accused is presently committable as a person of unsound mind. [Footnote 12] Since this inquiry may be undertaken at any time "prior to the imposition of sentence," it appears to be as available after the jury returns a verdict of not guilty by reason of insanity as before trial.In light of the foregoing considerations, we conclude that it was not Congress' purpose to make commitment compulsory when, as here, an accused disclaims reliance on a defense of mental irresponsibility. This does not mean, of course, that a criminal defendant has an absolute right to have his guilty plea accepted by the court. As provided in Rule 11, Fed.Rules Crim.Proc., and Rule 9, D.C.Munic.Ct.Crim.Rules, the trial judge may refuse to accept such a plea and enter a plea of not guilty on behalf of the accused. We decide in this case only that if this is done and the defendant, despite his own assertions of sanity, is found not guilty by reason of insanity, Page 369 U. S. 720 § 24-301(d) does not apply. If commitment is then considered warranted, it must be accomplished either by resorting to § 24-301(a) or by recourse to the civil commitment provisions in Title 21 of the D.C.Code.The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtLynch v. Overholser, 369 U.S. 705 (1962)Lynch v. OverholserNo. 159Argued January 15, 1962Decided May 21, 1962369 U.S. 705SyllabusAfter petitioner had received treatment in a mental hospital, a psychiatrist advised the court that he was able to stand trial, but that he was suffering from a mental disease, and that further treatment would be advisable. Petitioner was then brought to trial in the District of Columbia on two charges of passing worthless checks. On advice of counsel, he sought to withdraw an earlier plea of not guilty and to plead guilty to both charges, but the judge refused to permit him to do so. Although petitioner maintained that he was mentally responsible when the offenses were committed, and presented no evidence to support an acquittal by reason of insanity, the trial judge concluded that he was not guilty on the ground that he was insane at the time of the commission of the offense, and ordered him committed to a mental hospital under D.C. Code § 24-301(d), which provides that,"If any person . . . is acquitted solely on the ground that he was insane at the time of [the] commission [of the offense], the court shall order such person to be confined in a hospital for the mentally ill."In this habeas corpus proceeding, held: the trial court erred in ordering petitioner committed, because § 24-301(d) applies only to a defendant who, by his own act, has relied on a defense that he was insane when the offense was committed, and who is acquitted on that ground. Pp. 369 U. S. 706-720.109 U.S.App.D.C. 404, 288 F.2d 388, reversed. Page 369 U. S. 706

1973_72-936

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondent Robinson was convicted in United States District Court for the District of Columbia of the possession and facilitation of concealment of heroin in violation of 26 U.S.C. § 4704(a) (1964 ed.), and 21 U.S.C. § 174 (1964 ed.). He was sentenced to concurrent terms of imprisonment for these offenses. On his appeal to the Court of Appeals for the District of Columbia Circuit, Page 414 U. S. 220 that court first remanded the case to the District Court for an evidentiary hearing concerning the scope of the search of respondent's person which and occurred at the time of his arrest. 145 U.S.App.D.C. 46, 447 F.2d 1215 (1971). The District Court made findings of fact and conclusions of law adverse to respondent, and he again appealed. This time the Court of Appeals en banc reversed the judgment of conviction, holding that the heroin introduced in evidence against respondent had been obtained as a result of a search which violated the Fourth Amendment to the United States Constitution. 153 U.S.App.D.C. 114, 471 F.2d 1082 (1972). We granted certiorari, 410 U.S. 982 (1973), and set the case for argument together with Gustafson v. Florida, No. 71-1669, post, p. 414 U. S. 260, also decided today.On April 23, 1968, at approximately 11 p.m., Officer Richard Jenks, a 15-year veteran of the District of Columbia Metropolitan Police Department, observed the respondent driving a 1965 Cadillac near the intersection of 8th and C Streets, N.E., in the District of Columbia. Jenks, as a result of previous investigation following a check of respondent's operator's permit four days earlier, determined there was reason to believe that respondent was operating a motor vehicle after the revocation of his operator's permit. This is an offense defined by statute in the District of Columbia which carries a mandatory minimum jail term, a mandatory minimum fine, or both. D.C.Code Ann. § 40-302(d) (1967).Jenks signaled respondent to stop the automobile, which respondent did, and all three of the occupants emerged from the car. At that point, Jenks informed respondent that he was under arrest for "operating after revocation and obtaining a permit by misrepresentation." It was assumed by the Court of Appeals, and is conceded by the respondent here, that Jenks had Page 414 U. S. 221 probable cause to arrest respondent, and that he effected a full-custody arrest. [Footnote 1]In accordance with procedures prescribed in police department instructions, [Footnote 2] Jenks then began to search Page 414 U. S. 222 respondent. He explained at a subsequent hearing that he was "face-to-face" with the respondent, and"placed [his] hands on [the respondent], my right hand to his Page 414 U. S. 223 left breast like this (demonstrating) and proceeded to pat him down thus [with the right hand]."During this pat-down, Jenks felt an object in the left breast pocket of the heavy coat respondent was wearing, but testified that he "couldn't tell what it was," and also that he "couldn't actually tell the size of it." Jenks then reached into the pocket and pulled out the object, which turned out to be a "crumpled up cigarette package." Jenks testified that, at this point he still did not know what was in the package:"As I felt the package, I could feel objects in the package, but I couldn't tell what they were. . . . I knew they weren't cigarettes."The officer then opened the cigarette pack and found 14 gelatin capsules of white powder which he thought to be, and which later analysis proved to be, heroin. Jenks then continued his search of respondent to completion, feeling around his waist and trouser legs, and examining the remaining pockets. The heroin seized from the respondent was admitted into evidence at the trial which resulted in his conviction in the District Court.The opinion for the plurality judges of the Court of Appeals, written by Judge Wright, the concurring opinion of Chief Judge Bazelon, and the dissenting opinion of Judge Wilkey, concurred in by three judges, gave careful and comprehensive treatment to the authority of a police officer to search the person of one Page 414 U. S. 224 who has been validly arrested and taken into custody. We conclude that the search conducted by Jenks in this case did not offend the limits imposed by the Fourth Amendment, and we therefore reverse the judgment of the Court of Appeals.IIt is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.Examination of this Court's decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area which may be searched.Because the rule requiring exclusion of evidence obtained in violation of the Fourth Amendment was first enunciated in Weeks v. United States, 232 U. S. 383 (1914), it is understandable that virtually all of this Court's search and seizure law has been developed since that time. In Weeks, the Court made clear its recognition of the validity of a search incident to a lawful arrest:"What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Page 414 U. S. 225 Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, § 211; Wharton, Crim.Plead. and Practice, 8th ed., § 60; Dillon v. O'Brien and Davis, 16 Cox C.C. 245."Id. at 392.Agnello v. United States, 269 U. S. 20 (1925), decided 11 years after Weeks, repeats the categorical recognition of the validity of a search incident to lawful arrest:"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."Id. at 269 U. S. 30.Throughout the series of cases in which the Court has addressed the second proposition relating to a search incident to a lawful arrest -- the permissible area beyond the person of the arrestee which such a search may cover -- no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee. E.g., Carroll v. United States, 267 U. S. 132 (1925); Marron v. United States, 275 U. S. 192 (1927); Go-Bart Co. v. United States, 282 U. S. 344 (1931); United States v. Lefkowitz, 285 U. S. 452 (1932); Harris v. United States, 331 U. S. 145 (1947); Trupiano v. United States, 334 U. S. 699 (1948); United States v. Rabinowitz, 339 U. S. 56 (1950); Preston v. United States, 376 U. S. 364 (1964); Chimel v. California, 395 U. S. 752 (1969). In Chimel, where the Court overruled Rabinowitz and Harris as to the area Page 414 U. S. 226 of permissible search incident to a lawful arrest, full recognition was again given to the authority to search the person of the arrestee:"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction."395 U.S. at 395 U. S. 762-763.Three years after the decision in Chimel, supra, we upheld the validity of a search in which heroin had been taken from the person of the defendant after his arrest on a weapons charge, in Adams v. Williams, 407 U. S. 143 (1972), saying:"Under the circumstances surrounding Williams' possession of the gun seized by Sgt. Connolly, the arrest on the weapons charge was supported by probable cause, and the search of his person and of the car incident to that arrest was lawful."Id. at 407 U. S. 149. Last Term, in Cupp v. Murphy, 412 U. S. 291, 412 U. S. 295 (1973), we again reaffirmed the traditional statement of the authority to search incident to a valid arrest.Thus, the broadly stated rule, and the reasons for it, have been repeatedly affirmed in the decisions of this Court since Weeks v. United States, supra, nearly 60 years ago. Since the statements in the cases speak not simply in terms of an exception to the warrant requirement, but in terms of an affirmative authority to search, they clearly imply that such searches also meet the Fourth Amendment's requirement of reasonableness. Page 414 U. S. 227IIIn its decision of this case, the Court of Appeals decided that even after a police officer lawfully places a suspect under arrest for the purpose of taking him into custody, he may not ordinarily proceed to fully search the prisoner. He must, instead, conduct a limited frisk of the outer clothing and remove such weapons that he may, as a result of that limited frisk, reasonably believe and ascertain that the suspect has in his possession. While recognizing that Terry v. Ohio, 392 U. S. 1 (1968), dealt with a permissible "frisk" incident to an investigative stop based on less than probable cause to arrest, the Court of Appeals felt that the principles of that case should be carried over to this probable cause arrest for driving while one's license is revoked. Since there would be no further evidence of such a crime to be obtained in a search of the arrestee, the court held that only a search for weapons could be justified.Terry v. Ohio, supra, did not involve an arrest for probable cause, and it made quite clear that the "protective frisk" for weapons which it approved might be conducted without probable cause. Id. at 392 U. S. 21-22, 392 U. S. 24-25. This Court's opinion explicitly recognized that there is a "distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons.""The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U. S. 364, 376 U. S. 367 (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies Page 414 U. S. 228 which justify its initiation. Warden v. Hayden, 387 U. S. 294, 387 U. S. 310 (1967) (MR. JUSTICE FORTAS, concurring). Thus, it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a 'full' search, even though it remains a serious intrusion."". . . An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person."Id. at 392 U. S. 25-26 (footnote omitted). Terry therefore affords no basis to carry over to a probable cause arrest the limitations this Court placed on a stop-and-frisk search permissible without probable cause.The Court of Appeals also relied on language in Peters v. New York, 392 U. S. 40, 392 U. S. 66 (1968), a companion case to Terry. There, the Court held that the police officer had authority to search Peters because he had probable cause to arrest him, and went on to say:"[T]he incident search was obviously justified""by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the Page 414 U. S. 229 destruction of evidence of the crime.""Preston v. United States, 376 U. S. 364, 376 U. S. 367 (1964). Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thoroughgoing examination of Peters and his personal effects."Id. at 392 U. S. 67.It is, of course, possible to read the second sentence from this quotation as imposing a novel limitation on the established doctrine set forth in the first sentence. It is also possible to read it as did Mr. Justice Harlan in his opinion concurring in the result:"The second possible source of confusion is the Court's statement that 'Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects.' [392 U.S.] at 392 U. S. 67. Since the Court found probable cause to arrest Peters, and since an officer arresting on probable cause is entitled to make a very full incident search, I assume that this is merely a factual observation. As a factual matter, I agree with it."Id. at 392 U. S. 77 (footnote omitted).We do not believe that the Court in Peters intended, in one unexplained and unelaborated sentence, to impose a novel and far-reaching limitation on the authority to search the person of an arrestee incident to his lawful arrest. While the language from Peters was quoted with approval in Chimel v. California, 395 U.S. at 395 U. S. 764, it is preceded by a full exposition of the traditional and unqualified authority of the arresting officer to search the arrestee's person. Id. at 395 U. S. 763. We do not believe that either Terry or Peters, when considered in the light of the previously discussed statements of this Court, justified the sort of limitation upon that authority which the Court of Appeals fashioned in this case. Page 414 U. S. 230IIIVirtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta. We would not, therefore, be foreclosed by principles of stare decisis from further examination into history and practice in order to see whether the sort of qualifications imposed by the Court of Appeals in this case were, in fact, intended by the Framers of the Fourth Amendment or recognized in cases decided prior to Weeks. Unfortunately, such authorities as exist are sparse. Such common law treatises as Blackstone's Commentaries and Holmes' Common Law are simply silent on the subject. Pollock and Maitland, in their History of English Law, describe the law of arrest as "rough and rude" before the time of Edward I, but do not address the authority to search incident to arrest. 2 F. Pollock & F. Maitland, The History of English Law 582 (2d ed.1909).The issue was apparently litigated in the English courts in Dillon v. O'Brien, 16 Cox C.C. 245 (Exch.Ireland, 1887), cited in Weeks v. United States, supra. There Baron Palles said:"But the interest of the State in the person charged being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of trial. His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence, without which a trial would be no more than an empty form. But if there be a right to production or preservation of this evidence, I cannot see how it can be enforced otherwise than by capture."16 Cox C.C. at 250. Page 414 U. S. 231Spalding v. Preston, 21 Vt. 9 (1848), represents an early holding in this country that evidence may be seized from one who is lawfully arrested. In Closson v. Morrison, 47 N.H. 482 (1867), the Court made the following statement:"[W]e think that an officer would also be justified in taking from a person whom he had arrested for crime any deadly weapon he might find upon him, such as a revolver, a dirk, a knife, a sword cane, a slung shot, or a club, though it had not been used or intended to be used in the commission of the offence for which the prisoner had been arrested, and even though no threats of violence towards the officer had been made. A due regard for his own safety on the part of the officer, and also for the public safety, would justify a sufficient search to ascertain if such weapons were carried about the person of the prisoner, or were in his possession, and if found, to seize and hold them until the prisoner should be discharged, or until they could be otherwise properly disposed of. Spalding v. Preston, 21 Vt. 9, 16.""So we think it might be with money or other articles of value, found upon the prisoner, by means of which, if left in his possession, he might procure his escape, or obtain tools, or implements, or weapons with which to effect his escape. We think the officer arresting a man for crime not only may, but frequently should, make such searches and seizures; that, in many cases they might be reasonable and proper, and courts would hold him harmless for so doing when he acts in good faith and from a regard to his own or the public safety or the security of his prisoner."Id. at 484-485. Page 414 U. S. 232Similarly, in Holker v. Hennessey, 141 Mo. 527, 42 S.W. 1090 (1897), the Supreme Court of Missouri said:"Generally speaking, in the absence of a statute, an officer has no right to take any property from the person of the prisoner except such as may afford evidence of the crime charged, or means of identifying the criminal, or may be helpful in making an escape."Id. at 539, 42 S.W. at 1093.Then Associate Judge Cardozo of the New York Court of Appeals summarized his understanding of the historical basis for the authority to search incident to arrest in these words:"The basic principle is this: search of the person is unlawful when the seizure of the body is a trespass, and the purpose of the search is to discover grounds as yet unknown for arrest or accusation [citation omitted]. Search of the person becomes lawful when grounds for arrest and accusation have been discovered and the law is in the act of subjecting the body of the accused to its physical dominion.""The distinction may seem subtle, but in truth it is founded in shrewd appreciation of the necessities of government. We are not to strain an immunity to the point at which human nature rebels against honoring it in conduct. The peace officer empowered to arrest must be empowered to disarm. If he may disarm, he may search, lest a weapon be concealed. The search being lawful, he retains what he finds if connected with the crime."People v. Chiagles, 237 N.Y. 193, 197, 142 N.E. 583, 584 (1923).While these earlier authorities are sketchy, they tend to support the broad statement of the authority to Page 414 U. S. 233 search incident to arrest found in the successive decisions of this Court, rather than the restrictive one which was applied by the Court of Appeals in this case. The scarcity of case law before Weeks is doubtless due in part to the fact that the exclusionary rule there enunciated had been first adopted only 11 years earlier in Iowa; but it would seem to be also due in part to the fact that the issue was regarded as well settled. [Footnote 3]The Court of Appeals in effect determined that the only reason supporting the authority for a full search incident to lawful arrest was the possibility of discovery of evidence or fruits. [Footnote 4] Concluding that there could be no evidence or fruits in the case of an offense such as that with which respondent was charged, it held that any protective search would have to be limited by the conditions laid down in Terry for a search upon less than probable cause to arrest. Quite apart from the fact that Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other, we find additional reason to disagree with the Court of Appeals. Page 414 U. S. 234The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. Agnello v. United States, 269 U. S. 20 (1925); Abel v. United States, 362 U. S. 217 (1960). The standards traditionally governing a search incident to lawful arrest are not, therefore, commuted to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.Nor are we inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes. [Footnote 5] It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which Page 414 U. S. 235 follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justification.But quite apart from these distinctions, our more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would, in fact, be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that, in the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment. Page 414 U. S. 236IVThe search of respondent's person conducted by Officer Jenks in this case and the seizure from him o the heroin, were permissible under established Fourth Amendment law. While thorough, the search partook of none of the extreme or patently abusive characteristics which were held to violate the Due Process Clause of the Fourteenth Amendment in Rochin v. California, 342 U. S. 165 (1952). Since it is the fact of custodial arrest which gives rise to the authority to search, [Footnote 6] it is of no moment that Jenks did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed. [Footnote 7] Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as "fruits, instrumentalities, or contraband" probative of criminal conduct. Harris v. United States, 331 U.S. at 331 U. S. 154-155; Warden v. Hayden, 387 U. S. 294, 387 U. S. 299, 307 (1967); Adams v. Williams, 407 U.S. at 407 U. S. 149. Page 414 U. S. 237 The judgment of the Court of Appeals holding otherwise isReversed

U.S. Supreme CourtUnited States v. Robinson, 414 U.S. 218 (1973)United States v. RobinsonNo. 72-936Argued October 9, 1973Decided December 11, 1973414 U.S. 218SyllabusHaving, as a result of a previous check of respondent's operator's permit, probable cause to arrest respondent for driving while his license was revoked, a police officer made a full custody arrest of respondent for such offense. In accordance with prescribed procedures, the officer made a search of respondent's person, in the course of which he found in a coat pocket a cigarette package containing heroin. The heroin was admitted into evidence at the District Court trial, which resulted in respondent's conviction for a drug offense. The Court of Appeals reversed on the ground that the heroin had been obtained as a result of a search in violation of the Fourth Amendment.Held: In the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment. Pp. 414 U. S. 224-237.(a) A search incident to a valid arrest is not limited to a frisk of the suspect's outer clothing and removal of such weapons as the arresting officer may, as a result of such frisk, reasonably believe and ascertain that the suspect has in his possession, and the absence of probable fruits or further evidence of the particular crime for which the arrest is made does not narrow the standards applicable to such a search. Terry v. Ohio, 392 U. S. 1, distinguished. Pp. 414 U. S. 227-229; 23235.(b) A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment and, a search incident to the arrest requires no additional justification, such as the probability in a particular arrest situation that weapons or evidence would, in fact, be found upon the suspect's person; and whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest need not be litigated in each case. P. 414 U. S. 235.(c) Since the custodial arrest here gave rise to the authority Page 414 U. S. 219 to search, it is immaterial that the arresting officer did not fear the respondent or suspect that he was armed. Pp. 414 U. S. 236-237.153 U.S.App.D.C. 114, 471 F.2d 1082, reversedREHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. POWELL J., filed a concurring opinion, post, p. 414 U. S. 237. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 414 U. S. 238.

1958_66

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This case is before us for the second time. The present litigation began with a dispute between the petitioning unions and respondents, co-partners in the business of selling lumber and other materials in California. Respondents began an action in the Superior Court for the County of San Diego, asking for an injunction and damages. Upon hearing, the trial court found the following facts. In March of 1953, the unions sought from respondents an agreement to retain in their employ only those workers who were already members of the unions, or who applied for membership within thirty days. Respondents refused, claiming that none of their employees had shown a desire to join a union, and that, in any event, they could not accept such an arrangement until one of the unions had been designated by the employees as a collective bargaining agent. The unions began at once peacefully to picket the respondents' place of business, and to exert pressure on customers and suppliers in order to persuade them to stop dealing with respondents. The sole purpose of these pressures was to compel execution of the proposed contract. The unions contested this finding, claiming that the only purpose of their activities was to educate the workers and persuade them to become members. On the basis of its findings, the court enjoined the unions from picketing and from the use of other pressures to force an agreement, until one of Page 359 U. S. 238 them had been properly designated as a collective bargaining agent. The court also awarded $1,000 damages for losses found to have been sustained.At the time the suit in the state court was started, respondents had begun a representation proceeding before the National Labor Relations Board. The Regional Director declined jurisdiction, presumably because the amount of interstate commerce involved did not meet the Board's monetary standards in taking jurisdiction.On appeal, the California Supreme Court sustained the judgment of the Superior Court, 45 Cal. 2d 657, 291 P.2d 1, holding that, since the National Labor Relations Board had declined to exercise its jurisdiction, the California courts had power over the dispute. They further decided that the conduct of the union constituted an unfair labor practice under § 8(b)(2) of the National Labor Relations Act, and hence was not privileged under California law. As the California court itself later pointed out, this decision did not specify what law, state or federal, was the basis of the relief granted. Both state and federal law played a part but, "[a]ny distinction as between those laws was not thoroughly explored." Garmon v. San Diego Bldg. Trades Council, 49 Cal. 2d 595, 602, 320 P.2d 473, 477.We granted certiorari, 351 U.S. 923, and decided the case together with Guss v. Utah Labor Relations Board, 353 U. S. 1, and Amalgamated Meat Cutters, etc. v. Fairlawn Meats, Inc., 353 U. S. 20. In those cases, we held that the refusal of the National Labor Relations Board to assert jurisdiction did not leave with the States power over activities they otherwise would be preempted from regulating. Both Guss and Fairlawn involved relief of an equitable nature. In vacating and remanding the judgment of the California court in this case, we pointed out that those cases controlled this one "in its major aspects." 353 U.S. at 353 U. S. 28. However, since it was not clear whether the Page 359 U. S. 239 judgment for damages would be sustained under California law, we remanded to the state court for consideration of that local law issue. The federal question, namely, whether the National Labor Relations Act precluded California from granting an award for damages arising out of the conduct in question, could not be appropriately decided until the antecedent state law question was decided by the state court.On remand, the California court, in accordance with our decision in Guss, set aside the injunction, but sustained the award of damages. Garmon v. San Diego Bldg. Trades Council, 49 Cal. 2d 595, 320 P.2d 473 (three judges dissenting). After deciding that California had jurisdiction to award damages for injuries caused by the union's activities, the California court held that those activities constituted a tort based on an unfair labor practice under state law. In so holding, the court relied on general tort provisions of the California Civil Code, §§ 1667, 1708, as well as state enactments dealing specifically with labor relations, Calif. Labor Code, § 923 (1937); ibid., §§ 1115-1118 (1947).We again granted certiorari, 357 U.S. 925, to determine whether the California court had jurisdiction to award damages arising out of peaceful union activity which it could not enjoin.The issue is a variant of a familiar theme. It began with Allen-Bradley v. Wisconsin Board, 315 U. S. 740, was greatly intensified by litigation flowing from the Taft-Hartley Act, and has recurred here in almost a score of cases during the last decade. The comprehensive regulation of industrial relations by Congress, novel federal legislation twenty-five years ago but now an integral part of our economic life, inevitably gave rise to difficult problems of federal-state relations. To be sure, in the abstract, these problems came to us as ordinary questions of statutory construction. But they involved a more complicated Page 359 U. S. 240 and perceptive process than is conveyed by the delusive phrase, "ascertaining the intent of the legislature." Many of these problems probably could not have been, at all events were not, foreseen by the Congress. Others were only dimly perceived, and their precise scope only vaguely defined. This Court was called upon to apply a new and complicated legislative scheme, the aims and social policy of which were drawn with broad strokes, while the details had to be filled in, to no small extent, by the judicial process. Recently we indicated the task that was thus cast upon this Court in carrying out with fidelity the purposes of Congress, but doing so by giving application to congressional incompletion. What we said in Weber v. Anheuser-Busch, Inc., 348 U. S. 468, deserves repetition, because the considerations there outlined guide this day's decision:"By the Taft-Hartley Act, Congress did not exhaust the full sweep of legislative power over industrial relations given by the Commerce Clause. Congress formulated a code whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces. As to both categories, the areas that have been preempted by federal authority, and thereby withdrawn from state power, are not susceptible of delimitation by fixed metes and bounds. Obvious conflict, actual or potential, leads to easy judicial exclusion of state action. Such was the situation in Garner v. Teamsters Union, supra. But as the opinion in that case recalled, the Labor Management Relations Act 'leaves much to the states, though Congress has refrained from telling us how much.' 346 U.S. at 346 U. S. 488. This penumbral area can be rendered progressively clear only by the course of litigation."348 U.S. at 348 U. S. 480-481. Page 359 U. S. 241The case before us concerns one of the most teasing and frequently litigated areas of industrial relations, the multitude of activities regulated by §§ 7 and 8 of the National Labor Relations Act. 61 Stat. 140, 29 U.S.C. §§ 157, 158. These broad provisions govern both protected "concerted activities" and unfair labor practices. They regulate the vital, economic instruments of the strike and the picket line, and impinge on the clash of the still unsettled claims between employers and labor unions. The extent to which the variegated laws of the several States are displaced by a single, uniform, national rule has been a matter of frequent and recurring concern. As we pointed out the other day,"the statutory implications concerning what has been taken from the States and what has been left to them are of a Delphic nature, to be translated into concreteness by the process of litigating elucidation."International Ass'n of Machinists v. Gonzales, 356 U. S. 617, 356 U. S. 619.In the area of regulation with which we are here concerned, the process thus described has contracted initial ambiguity and doubt and established guides for judgment by interested parties and certainly guides for decision. We state these principles in full realization that, in the course of a process of tentative, fragmentary illumination carried on over more than a decade during which the writers of opinions almost inevitably, because unconsciously, focus their primary attention on the facts of particular situations, language may have been used or views implied which do not completely harmonize with the clear pattern which the decisions have evolved. But it may safely be claimed that the basis and purport of a long series of adjudications have "translated into concreteness" the consistently applied principles which decide this case.In determining the extent to which state regulation must yield to subordinating federal authority, we have Page 359 U. S. 242 been concerned with delimiting areas of potential conflict -- potential conflict of rules of law, of remedy, and of administration. The nature of the judicial process precludes an ad hoc inquiry into the special problems of labor-management relations involved in a particular set of occurrences in order to ascertain the precise nature and degree of federal-state conflict there involved, and more particularly what exact mischief such a conflict would cause. Nor is it our business to attempt this. Such determinations inevitably depend upon judgments on the impact of these particular conflicts on the entire scheme of federal labor policy and administration. Our task is confined to dealing with classes of situations. To the National Labor Relations Board and to Congress must be left those precise and closely limited demarcations that can be adequately fashioned only by legislation and administration. We have necessarily been concerned with the potential conflict of two law-enforcing authorities, with the disharmonies inherent in two systems, one federal the other state, of inconsistent standards of substantive law and differing remedial schemes. But the unifying consideration of our decisions has been regard to the fact that Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency, armed with its own procedures and equipped with its specialized knowledge and cumulative experience:"Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures Page 359 U. S. 243 was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes towards labor controversies. . . . A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law. . . ."Garner v. Teamsters Union, 346 U. S. 485, 346 U. S. 490-491.Administration is more than a means of regulation; administration is regulation. We have been concerned with conflict in its broadest sense -- conflict with a complex and interrelated federal scheme of law, remedy, and administration. Thus, judicial concern has necessarily focused on the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted. When the exercise of state power over a particular area of activity threatened interference with the clearly indicated policy of industrial relations, it has been judicially necessary to preclude the States from acting. [Footnote 1] However, due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism, but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. See International Page 359 U. S. 244 Ass'n of Machinists v. Gonzales, 356 U. S. 617. Or where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act. [Footnote 2]When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application, rather than laws specifically directed towards the governance of industrial relations. [Footnote 3] Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes.At times, it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Page 359 U. S. 245 Labor Relations Board. What is outside the scope of this Court's authority cannot remain within a State's power and state jurisdiction too must yield to the exclusive primary competence of the Board. See, e.g., Garner v. Teamsters Union, 346 U. S. 485, especially at 346 U. S. 489-491; Weber v. Anheuser-Busch, Inc., 348 U. S. 468.The case before us is such a case. The adjudication in California has throughout been based on the assumption that the behavior of the petitioning unions constituted an unfair labor practice. This conclusion was derived by the California courts from the facts as well as from their view of the Act. It is not for us to decide whether the National Labor Relations Board would have, or should have, decided these questions in the same manner. When an activity is arguably subject to § 7 or § 8 of the Act, the States, as well as the federal courts, must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.To require the States to yield to the primary jurisdiction of the National Board does not ensure Board adjudication of the status of a disputed activity. If the Board decides, subject to appropriate federal judicial review, that conduct is protected by § 7, or prohibited by § 8, then the matter is at an end, and the States are ousted of all jurisdiction. Or the Board may decide that an activity is neither protected nor prohibited, and thereby raise the question whether such activity may be regulated by the States. [Footnote 4] However, the Board may also fail to determine the status of the disputed conduct by declining to assert jurisdiction, or by refusal of the General Counsel to file Page 359 U. S. 246 a charge, or by adopting some other disposition which does not define the nature of the activity with unclouded legal significance. This was the basic problem underlying our decision in Guss v. Utah Labor Relations Board, 353 U. S. 1. In that case, we held that the failure of the National Labor Relations Board to assume jurisdiction did not leave the States free to regulate activities they would otherwise be precluded from regulating. It follows that the failure of the Board to define the legal significance under the Act of a particular activity does not give the States the power to act. In the absence of the Board's clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction. The withdrawal of this narrow area from possible state activity follows from our decisions in Weber and Guss. The governing consideration is that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy. [Footnote 5]In the light of these principles the case before us is clear. Since the National Labor Relations Board has not adjudicated the status of the conduct for which the State of California seeks to give a remedy in damages, and since such activity is arguably within the compass of § 7 or § 8 of the Act, the State's jurisdiction is displaced.Nor is it significant that California asserted its power to give damages rather than to enjoin what the Board may restrain though it could not compensate. Our concern is with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered. Page 359 U. S. 247 Such regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy. Even the States' salutary effort to redress private wrongs or grant compensation for past harm cannot be exerted to regulate activities that are potentially subject to the exclusive federal regulatory scheme. See Garner v. Teamsters Union, 346 U. S. 485, 346 U. S. 492-497. It may be that an award of damages in a particular situation will not, in fact, conflict with the active assertion of federal authority. The same may be true of the incidence of a particular state injunction. To sanction either involves a conflict with federal policy in that it involves allowing two law-making sources to govern. In fact, since remedies form an ingredient of any integrated scheme of regulation, to allow the State to grant a remedy here which has been withheld from the National Labor Relations Board only accentuates the danger of conflict.It is true that we have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order. United Automobile Workers v. Russell, 356 U. S. 634; United Construction Workers v. Laburnum Corp., 347 U. S. 656. We have also allowed the States to enjoin such conduct. Youngdahl v. Rainfair, 355 U. S. 131; Auto Workers v. Wisconsin Board, 351 U. S. 266. State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overridden in the absence of clearly expressed congressional direction. We recognize that the opinion in United Construction Workers v. Laburnum Corp., 347 U. S. 656, found support in the fact that the state remedy had no federal counterpart. But that decision Page 359 U. S. 248 was determined, as is demonstrated by the question to which review was restricted, by the "type of conduct" involved, i.e., "intimidation and threats of violence." [Footnote 6] In the present case, there is no such compelling state interest.The judgment below is reversed.Reversed

U.S. Supreme CourtSan Diego Unions v. Garmon, 359 U.S. 236 (1959)San Diego Building Trades Council v. GarmonNo. 66Argued January 20, 1959Decided April 20, 1959359 U.S. 236SyllabusAlthough the National Labor Relations Board had declined to exercise jurisdiction, a California state court was precluded by the National Labor Relations Act from awarding damages to respondents under state law for economic injuries resulting from the peaceful picketing of their plant by labor unions which had not been selected by a majority of respondents' employees as their bargaining agents. Pp. 359 U. S. 237-248.(a) When an activity arguably subject to § 7 or § 8 of the National Labor Relations Act, as was the picketing here involved, the States, as well as the federal courts, must defer to the exclusive competence of the National Labor Relations Board. P. 359 U. S. 245.(b) Failure of the National Labor Relations Board to assume jurisdiction does not leave the States free to regulate activities they would otherwise be precluded from regulating. Pp. 359 U. S. 245-246.(c) Since the National Labor Relations Board has not adjudicated the status of the conduct here involved, and since such activity is arguably within the compass of § 7 or § 8 of the Act, the State's jurisdiction is displaced. P. 359 U. S. 246.(d) A different conclusion is not required by the fact that all that is involved here is an attempt by the State to award damages, since state regulation can be as effectively exerted through an award of damages as through some form of preventive relief. Pp. 359 U. S. 246-247.(e) United Automobile Workers v. Russell, 356 U. S. 634, and United Construction Workers v. Laburnum Corp., 347 U. S. 656, distinguished. Pp. 359 U. S. 247-248.49 Cal. 2d 595, 320 P.2d 473, reversed. Page 359 U. S. 237

1966_32

MR. JUSTICE STEWART delivered the opinion of the Court.Over a period of several weeks in the late autumn of 1962, there took place in a federal court in Nashville, Tennessee, a trial by jury in which James Hoffa was charged with violating a provision of the Taft-Hartley Act. That trial, known in the present record as the Test Fleet trial, ended with a hung jury. The petitioners now before us -- James Hoffa, Thomas Parks, Larry Campbell, and Ewing King -- were tried and convicted Page 385 U. S. 295 in 1964 for endeavoring to bribe members of that jury. [Footnote 1] The convictions were affirmed by the Court of Appeals. [Footnote 2] A substantial element in the Government's, proof that led to the convictions of these four petitioners was contributed by a witness named Edward Partin, who testified to several incriminating statements which he said petitioners Hoffa and King had made in his presence during the course of the Test Fleet trial. Our grant of certiorari was limited to the single issue of whether the Government's use in this case of evidence supplied by Partin operated to invalidate these convictions. 382 U.S. 1024.The specific question before us, as framed by counsel for the petitioners, is this:"Whether evidence obtained by the Government by means of deceptively placing a secret informer in the quarters and councils of a defendant during one criminal trial so violates the defendant's Fourth, Fifth and Sixth Amendment rights that suppression of such evidence is required in a subsequent trial of the same defendant on a different charge."At the threshold, the Government takes issue with the way this question is worded, refusing to concede that it "placed' the informer anywhere, much less that it did so `deceptively.'" In the view we take of the matter, however, a resolution of this verbal controversy is unnecessary to a decision of the constitutional issues before us. The basic facts are clear enough, and a lengthy discussion of the detailed minutiae to which a large portion of the briefs and oral arguments was addressed would serve only to divert attention from the real issues before us. Page 385 U. S. 296The controlling facts can be briefly stated. The Test Fleet trial, in which James Hoffa was the sole individual defendant, was in progress between October 22 and December 23, 1962, in Nashville, Tennessee. James Hoffa was president of the International Brotherhood of Teamsters. During the course of the trial, he occupied a three-room suite in the Andrew Jackson Hotel in Nashville. One of his constant companions throughout the trial was the petitioner King, president of the Nashville local of the Teamsters Union. Edward Partin, a resident of Baton Rouge, Louisiana, and a local Teamsters Union official there, made repeated visits to Nashville during the period of the trial. On these visits he frequented the Hoffa hotel suite, and was continually in the company of Hoffa and his associates, including King, in and around the hotel suite, the hotel lobby, the courthouse, and elsewhere in Nashville. During this period, Partin made frequent reports to a federal agent named Sheridan concerning conversations he said Hoffa and King had had with him and with each other, disclosing endeavors to bribe members of the Test Fleet jury. Partin's reports and his subsequent testimony at the petitioners' trial unquestionably contributed, directly or indirectly, to the convictions of all four of the petitioners. [Footnote 3] Page 385 U. S. 297The chain of circumstances which led Partin to be in Nashville during the Test Fleet trial extended back at least to September of 1962. At that time, Partin was in jail in Baton Rouge on a state criminal charge. He was Page 385 U. S. 298 also under a federal indictment for embezzling union funds, and other indictments for state offenses were pending against him. Between that time and Partin's initial visit to Nashville on October 22, he was released on bail on the state criminal charge, and proceedings under the federal indictment were postponed. On October 8, Partin telephoned Hoffa in Washington, D.C., to discuss local union matters and Partin's difficulties with the authorities. In the course of this conversation, Partin asked if he could see Hoffa to confer about these problems, and Hoffa acquiesced. Partin again called Hoffa on October 18, and arranged to meet him in Nashville. During this period, Partin also consulted on several occasions with federal law enforcement agents, who told him that Hoffa might attempt to tamper with the Test Fleet jury and asked him to be on the lookout in Nashville for such attempts, and to report to the federal authorities any evidence of wrongdoing that he discovered. Partin agreed to do so.After the Test Fleet trial was completed, Partin's wife received four monthly installment payments of $300 from government funds, and the state and federal charges against Partin were either dropped or not actively pursued.Reviewing these circumstances in detail, the Government insists the fair inference is that Partin went to Nashville on his own initiative to discuss union business and his own problems with Hoffa, that Partin ultimately cooperated closely with federal authorities, only after he discovered evidence of jury tampering in the Test Fleet trial, that the payments to Partin's wife were simply in partial reimbursement of Partin's subsequent out-of-pocket expenses, and that the failure to prosecute Partin on the state and federal charges had no necessary connection with his services as an informer. The findings of the trial court support this version of the Page 385 U. S. 299 facts, [Footnote 4] and these findings were accepted by the Court of Appeals as "supported by substantial evidence." 349 F.2d at 36. But whether or not the Government "placed" Partin with Hoffa in Nashville during the Test Fleet trial, we proceed upon the premise that Partin was a government informer from the time he first arrived in Nashville on October 22, and that the Government compensated him for his services as such. It is upon that premise that we consider the constitutional issues presented.Before turning to those issues, we mention an additional preliminary contention of the Government. The Page 385 U. S. 300 petitioner Hoffa was the only individual defendant in the Test Fleet case, and Partin had conversations during the Test Fleet trial only with him and with the petitioner King. So far as appears, Partin never saw either of the other two petitioners during that period. Consequently, the Government argues that, of the four petitioners, only Hoffa has standing to raise a claim that his Sixth Amendment right to counsel in the Test Fleet trial was impaired, and only he and King have standing with respect to the other constitutional claims. Cf. Wong Sun v. United States, 371 U. S. 471, 371 U. S. 487-488, 371 U. S. 491-492; Jones v. United States, 362 U. S. 257, 362 U. S. 259-267. It is clear, on the other hand, that Partin's reports to the agent Sheridan uncovered leads that made possible the development of evidence against petitioners Parks and Campbell. But we need not pursue the nuances of these "standing" questions, because it is evident, in any event, that none of the petitioners can prevail unless the petitioner Hoffa prevails. For that reason, the ensuing discussion is confined to the claims of the petitioner Hoffa (hereinafter petitioner), all of which he clearly has standing to invoke.IIt is contended that only by violating the petitioner's rights under the Fourth Amendment was Partin able to hear the petitioner's incriminating statements in the hotel suite, and that Partin's testimony was therefore inadmissible under the exclusionary rule of Weeks v. United States, 232 U. S. 383. The argument is that Partin's failure to disclose his role as a government informer vitiated the consent that the petitioner gave to Partin's repeated entries into the suite, and that, by listening to the petitioner's statement,s Partin conducted an illegal "search" for verbal evidence. Page 385 U. S. 301The preliminary steps of this argument are on solid ground. A hotel room can clearly be the object of Fourth Amendment protection, as much as a home or an office. United States v. Jeffers, 342 U. S. 48. The Fourth Amendment can certainly be violated by guileful, as well as by forcible, intrusions into a constitutionally protected area. Gouled v. United States, 255 U. S. 298. And the protections of the Fourth Amendment are surely not limited to tangibles, but can extend as well to oral statements. Silverman v. United States, 365 U. S. 505.Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth Amendment protection. What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. [Footnote 5] There, he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private papers in Gouled, or the surreptitious electronic surveillance in Silverman. Countless other cases which have come to this Court over the years have involved a myriad of differing factual contexts in which the protections of the Fourth Amendment have been appropriately invoked. No doubt the future will bring countless others. By nothing we say here do we either foresee or foreclose factual Page 385 U. S. 302 situations to which the Fourth Amendment may be applicable.In the present case, however, it is evident that no interest legitimately protected by the Fourth Amendment is involved. It is obvious that the petitioner was not relying on the security of his hotel suite when he made the incriminating statements to Partin or in Partin's presence. Partin did not enter the suite by force or by stealth. He was not a surreptitious eavesdropper. Partin was in the suite by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence. The petitioner, in a word, was not relying on the security of the hotel room; he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing. [Footnote 6] As counsel for the petitioner himself points out, some of the communications with Partin did not take place in the suite at all, but in the "hall of the hotel," in the "Andrew Jackson Hotel lobby," and "at the courthouse."Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Indeed, the Court unanimously rejected that very contention less than four years ago in Lopez v. United States, 373 U. S. 427. In that case, the petitioner had been convicted of attempted bribery of an internal revenue agent named Davis. The Court was divided with regard to the admissibility in evidence of a surreptitious electronic recording of an incriminating conversation Lopez had had in his private office with Davis. But there was no dissent from the view that testimony Page 385 U. S. 303 about the conversation by Davis himself was clearly admissible.As the Court put it,"Davis was not guilty of an unlawful invasion of petitioner's office simply because his apparent willingness to accept a bribe was not real. Compare Wong Sun v. United States, 371 U. S. 471. He was in the office with petitioner's consent, and, while there, he did not violate the privacy of the office by seizing something surreptitiously without petitioner's knowledge. Compare Gouled v. United States, supra. The only evidence obtained consisted of statements made by Lopez to Davis, statements which Lopez knew full well could be used against him by Davis if he wished. . . ."373 U.S. at 373 U. S. 438. In the words of the dissenting opinion in Lopez,"The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak."Id. at 373 U. S. 465. See also Lewis v. United States, ante p. 385 U. S. 206.Adhering to these views, we hold that no right protected by the Fourth Amendment was violated in the present case.IIThe petitioner argues that his right under the Fifth Amendment not to "be compelled in any criminal case to be a witness against himself" was violated by the admission of Partin's testimony. The claim is without merit.There have been sharply differing views within the Court as to the ultimate reach of the Fifth Amendment right against compulsory self-incrimination. Some of those differences were aired last Term in Miranda v. Arizona, 384 U. S. 436, 384 U. S. 499, 384 U. S. 504, 384 U. S. 526. But since at least as long ago as 1807, when Chief Justice Marshall first Page 385 U. S. 304 gave attention to the matter in the trial of Aaron Burr, [Footnote 7] all have agreed that a necessary element of compulsory self-incrimination is some kind of compulsion. Thus, in the Miranda case, dealing with the Fifth Amendment's impact upon police interrogation of persons in custody, the Court predicated its decision upon the conclusion"that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. . . ."384 U.S. at 384 U. S. 467.In the present case, no claim has been or could be made that the petitioner's incriminating statements were the product of any sort of coercion, legal or factual. The petitioner's conversations with Partin and in Partin's presence were wholly voluntary. For that reason, if for no other, it is clear that no right protected by the Fifth Amendment privilege against compulsory self-incrimination was violated in this case.IIIThe petitioner makes two separate claims under the Sixth Amendment, and we give them separate consideration.ADuring the course of the Test Fleet trial, the petitioner's lawyers used his suite as a place to confer with him and with each other, to interview witnesses, and to plan the following day's trial strategy. Therefore, Page 385 U. S. 305 argues the petitioner, Partin's presence in and around the suite violated the petitioner's Sixth Amendment right to counsel, because an essential ingredient thereof is the right of a defendant and his counsel to prepare for trial without intrusion upon their confidential relationship by an agent of the Government, the defendant's trial adversary. Since Partin's presence in the suite thus violated the Sixth Amendment, the argument continues, any evidence acquired by reason of his presence there was constitutionally tainted, and therefore inadmissible against the petitioner in this case. We reject this argument.In the first place, it is far from clear to what extent Partin was present at conversations or conferences of the petitioner's counsel. Several of the petitioner's Test Fleet lawyers testified at the hearing on the motion to suppress Partin's testimony in the present case. Most of them said that Partin had heard, or had been in a position to hear, at least some of the lawyers' discussions during the Test Fleet trial. On the other hand, Partin himself testified that the lawyers "would move you out" when they wanted to discuss the case, and denied that he made any effort to "get into or be present at any conversations between lawyers or anything of that sort," other than engaging in such banalities as "how things looked," or "how does it look?" He said he might have heard some of the lawyers' conversations, but he didn't know what they were talking about, "because I wasn't interested in what they had to say about the case." He testified that he did not report any of the lawyers' conversations to Sheridan, because the latter "wasn't interested in what the attorneys said." Partin's testimony was largely confirmed by Sheridan. Sheridan did testify, however, to one occasion when Partin told him about a group of prospective character witnesses being interviewed in the suite by one of the petitioner's lawyers, who "was going Page 385 U. S. 306 over" some written "questions and answers" with them. This information was evidently relayed by Sheridan to the chief government attorney at the Test Fleet trial. [Footnote 8]The District Court, in the present case, apparently credited Partin's testimony, finding "there has been no interference by the government with any attorney-client relationship of any defendant in this case." The Court of Appeals accepted this finding. 349 F.2d at 36. In view of Sheridan's testimony about Partin's report of the interviews with the prospective character witnesses, however, we proceed here on the hypothesis that Partin did observe and report to Sheridan at least some of the activities of defense counsel in the Test Fleet trial.The proposition that a surreptitious invasion by a government agent into the legal camp of the defense may violate the protection of the Sixth Amendment has found expression in two cases decided by the Court of Appeals for the District of Columbia Circuit, Caldwell v. United States, 92 U.S.App. D C. 355, 205 F.2d 879, and Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749. Both of those cases dealt with government intrusion of the grossest kind upon the confidential relationship between the defendant and his counsel. In Coplon, the Page 385 U. S. 307 defendant alleged that government agents deliberately intercepted telephone consultations between the defendant and her lawyer before and during trial. In Caldwell, the agent,"[i]n his dual capacity as defense assistant and Government agent . . . , gained free access to the planning of the defense. . . . Neither his dealings with the defense nor his reports to the prosecution were limited to the proposed unlawful acts of the defense: they covered many matters connected with the impending trial."92 U.S.App.D.C. at 356, 205 F.2d at 880.We may assume that the Coplon and Caldwell cases were rightly decided, and further assume, without deciding, that the Government's activities during the Test Fleet trial were sufficiently similar to what went on in Coplon and Caldwell to invoke the rule of those decisions. Consequently, if the Test Fleet trial had resulted in a conviction, instead of a hung jury, the conviction would presumptively have been set aside as constitutionally defective. Cf. Black v. United States, ante p. 385 U. S. 26.But a holding that it follows from this presumption that the petitioner's conviction in the present case should be set aside would be both unprecedented and irrational. In Coplon and in Caldwell, the Court of Appeals held that the Government's intrusion upon the defendant's relationship with his lawyer "invalidates the trial at which it occurred." 89 U.S.App.D.C. at 114, 191 F.2d at 759; 92 U.S.App.D.C. at 357, 205 F.2d at 881. In both of those cases, the court directed a new trial, [Footnote 9] and the second trial in Caldwell resulted in a conviction which this Court declined to review. 95 U.S.App.D.C. 35, 218 F.2d 370, 349 U.S. 930. The argument here, therefore, goes far beyond anything decided in Caldwell or in Coplon. For if the petitioner's argument were accepted, Page 385 U. S. 308 not only could there have been no new conviction on the existing charges in Caldwell, but not even a conviction on other and different charges against the same defendant.It is possible to imagine a case in which the prosecution might so pervasively insinuate itself into the councils of the defense as to make a new trial on the same charges impermissible under the Sixth Amendment. [Footnote 10] But even if it were further arguable that a situation could be hypothesized in which the Government's previous activities in undermining a defendant's Sixth Amendment rights at one trial would make evidence obtained thereby inadmissible in a different trial on other charges, the case now before us does not remotely approach such a situation.This is so because of the clinching basic fact in the present case that none of the petitioner's incriminating statements which Partin heard were made in the presence of counsel, in the hearing of counsel, or in connection in any way with the legitimate defense of the Test Fleet prosecution. The petitioner's statements related to the commission of a quite separate offense -- attempted bribery of jurors -- and the statements were made to Partin out of the presence of any lawyers.Even assuming, therefore, as we have, that there might have been a Sixth Amendment violation which might have made invalid a conviction, if there had been one, in the Test Fleet case, the evidence supplied by Partin in the present case was in no sense the "fruit" of any such violation. In Wong Sun v. United States, 371 U. S. 471, a case involving exclusion of evidence under Page 385 U. S. 309 the Fourth Amendment, the Court stated that"the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality, or, instead, by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1059)."371 U.S. at 371 U. S. 488.Even upon the premise that this same strict standard of excludability should apply under the Sixth Amendment -- a question we need not decide -- it is clear that Partin's evidence in this case was not the consequence of any "exploitation" of a Sixth Amendment violation. The petitioner's incriminating statements to which Partin testified in this case were totally unrelated in both time and subject matter to any assumed intrusion by Partin into the conferences of the petitioner's counsel in the Test Fleet trial. These incriminating statements, all of them made out of the presence or hearing of any of the petitioner's counsel, embodied the very antithesis of any legitimate defense in the Test Fleet trial.The petitioner's second argument under the Sixth Amendment needs no extended discussion. That argument goes as follows: not later than October 25, 1962, the Government had sufficient ground for taking the petitioner into custody and charging him with endeavors to tamper with the Test Fleet jury. Had the Government done so, it could not have continued to question the petitioner without observance of his Sixth Amendment right to counsel. Massiah v. United States, 377 U. S. 201; Escobedo v. Illinois, 378 U. S. 478. Therefore, the argument concludes, evidence of statements Page 385 U. S. 310 made by the petitioner subsequent to October 25 was inadmissible, because the Government acquired that evidence only by flouting the petitioner's Sixth Amendment right to counsel.Nothing in Massiah, in Escobedo, or in any other case that has come to our attention even remotely suggests this novel and paradoxical constitutional doctrine, and we decline to adopt it now. There is no constitutional right to be arrested. [Footnote 11] The police are not required to guess, at their peril, the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.IVFinally, the petitioner claims that, even if there was no violation -- "as separately measured by each such Amendment" -- of the Fourth Amendment, the compulsory self-incrimination clause of the Fifth Amendment, or of the Sixth Amendment in this case, the judgment of conviction must nonetheless be reversed. The argument is based upon the Due Process Clause of the Fifth Amendment. The "totality" of the Government's conduct during the Test Fleet trial operated, it is said, to"'offend those canons of decency and fairness which express the notions of justice of English-speaking peoples Page 385 U. S. 311 even toward those charged with the most heinous offenses' (Rochin v. California, 342 U. S. 165, 342 U. S. 169)."The argument boils down to a general attack upon the use of a government informer as "a shabby thing in any case," and to the claim that, in the circumstances of this particular case, the risk that Partin's testimony might be perjurious was very high. Insofar as the general attack upon the use of informers is based upon historic "notions" of "English-speaking peoples," it is without historical foundation. In the words of Judge Learned Hand,"Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon accomplices, because the criminals will almost certainly proceed covertly. . . ."United States v. Dennis, 183 F.2d 201, at 224.This is not to say that a secret government informer is to the slightest degree more free from all relevant constitutional restrictions than is any other government agent. See Massiah v. United States, 377 U. S. 201. It is to say that the use of secret informers is not per se unconstitutional.The petitioner is quite correct in the contention that Partin, perhaps even more than most informers, may have had motives to lie. But it does not follow that his testimony was untrue, nor does it follow that his testimony was constitutionally inadmissible. The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury. At the trial of this case, Partin was subjected to rigorous cross-examination, and the extent and nature of his dealings with federal and state authorities were insistently explored. [Footnote 12] Page 385 U. S. 312 The trial judge instructed the jury, both specifically [Footnote 13] and generally, [Footnote 14] with regard to assessing Partin's credibility. The Constitution does not require us to upset the jury's verdict.Affirmed

U.S. Supreme CourtHoffa v. United States, 385 U.S. 293 (1966)Hoffa v. United StatesNo. 32Argued October 13, 1966Decided December 12, 1966*385 U.S. 293SyllabusPetitioners were convicted under 18 U.S.C. § 1503 for endeavoring to bribe members of a jury in a previous trial of petitioner Hoffa, for violating the Taft-Hartley Act, which resulted in a hung jury. Substantial information and evidence were given in the prosecution by Partin, a paid government informer, who, throughout the Taft-Hartley trial, was repeatedly in Hoffa's company -- in Hoffa's hotel suite, the hotel lobby, and elsewhere. The Court of Appeals affirmed the convictions, and this Court granted certiorari on the question whether the use of evidence furnished by the informer rendered the convictions invalid.Held:1. No rights under the Fourth Amendment were violated by the failure of Partin to disclose his role as a government informer. When Hoffa made incriminating statements to or in the presence of Partin, his invitee, he relied not on the security of the hotel room, but on his misplaced confidence that Partin would not reveal his wrongdoing. Pp. 385 U. S. 300-303.2. Hoffa's conversations with Partin, being entirely voluntary, involved no Fifth Amendment privilege against compulsory self-incrimination. Pp. 385 U. S. 303-304.3. There was no violation of any Sixth Amendment right to counsel in this case. Pp. 385 U. S. 304-310.(a) A Sixth Amendment violation resulting from Partin's reporting to the Government on the activities of Hoffa's counsel in preparing the defense of the Taft-Hartley trial might have invalidated any conviction in that trial. But the conviction in the subsequent trial for the different offense of endeavoring to bribe jurors was not rendered invalid by the admission of Hoffa's incriminating statements heard by Partin, none of which were made in the presence of counsel or in connection with the legitimate defense of the Taft-Hartley trial. Caldwell v. United States, Page 385 U. S. 294 92 U.S.App.D.C. 355, 205 F.2d 879; Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749, distinguished. Pp. 385 U. S. 306-309.(b) The Government was not obliged to arrest Hoffa when it first had probable cause to do so, though his admissions without counsel after arrest might have been barred, since law enforcement officers have no duty to halt a crime investigation when they have minimum evidence to establish probable cause. Pp. 385 U. S. 309-310.4. The use of a secret informer is not per se unconstitutional, and the use of Partin in this case did not violate due process requirements, his veracity having been fully subject to the safeguards of cross-examination and the trial court's instructions to the jury. Pp. 385 U. S. 310-312.349 F.2d 20, affirmed.

1980_79-1601

JUSTICE REHNQUIST delivered the opinion of the Court.A divided Court of Appeals for the Ninth Circuit held that respondent's state court murder conviction was constitutionally invalid. Its holding has two bases: (1) the pretrial photographic identification procedure employed by state police was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable in court misidentification of the [respondent]"; and(2) the admission of the in court identification "constituted error of constitutional dimension." 611 F.2d 754, 755 (1979). The question before us is whether the Court of Appeals properly analyzed respondent's challenge to his state court murder conviction, given the limited nature of the review provided federal courts by 28 U.S.C. § 2254.IIn 1973, respondent was convicted in the Superior Court of Kern County, Cal., of the first-degree murder of one of his fellow inmates at a California correctional institution. At trial, three witnesses testified that they had witnessed all or part of the attack on the inmate and identified respondent as participating in the murder. Respondent offered as an alibi three other witnesses who testified that respondent was in bed at the time the stabbing occurred. At no point did respondent object to his in court identification by the State's three eyewitnesses.On direct appeal to the California Court of Appeal, respondent claimed for the first time that the pretrial photographic identification employed by the state police violated Page 449 U. S. 542 the due process of law guaranteed him by the Fourteenth Amendment of the United States Constitution. The California Court of Appeal analyzed his contention under the test earlier enunciated by this Court in Simmons v. United States, 390 U. S. 377 (1968). The court explained that each case must be considered on its own facts, and a violation of due process will occur and a conviction will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The California court then rejected respondent's contention, in this language:"Reviewing the facts of the present case to determine if the particular photographic identification procedure used contained the proscribed suggestive characteristics, we first find that the photographs were available for cross-examination purposes at the trial. We further find that there is no showing of influence by the investigating officers[;] that the witnesses had an adequate opportunity to view the crime; and that their descriptions are accurate. The circumstances thus indicate the inherent fairness of the procedure, and we find no error in the admission of the identification evidence."App. to Pet. for Cert. CC-5. Respondent did not seek direct review of the California Court of Appeal's decision with the California Supreme Court. He did, however, later raise the pretrial identification issue in state habeas corpus proceedings. The California Superior Court, the California Court of Appeal, and the California Supreme Court all denied relief.On December 9, 1977, respondent filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of California and again raised the pretrial identification issue. On May 23, 1978, the District Court denied the petition, and respondent Page 449 U. S. 543 appealed this order to the United States Court of Appeals for the Ninth Circuit.The Court of Appeals for the Ninth Circuit reversed. The court, employing the same standard used by the California state courts, concluded "the photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 611 F.2d at 759. This conclusion was based, inter alia, on the court's finding that (1) the circumstances surrounding the witnesses' observation of the crime were such that there was a grave likelihood of misidentification; (2) the witnesses had failed to give sufficiently detailed descriptions of the assailant; and (3) considerable pressure from both prison officials and prison factions had been brought to bear on the witnesses. Id. at 758-759.IIThe findings made by the Court of Appeals for the Ninth Circuit are considerably at odds with the findings made by the California Court of Appeal. Both courts made their findings after reviewing the state court trial record, and neither court has indicated that this record is not a completely adequate record upon which to base such findings.If this were simply a run-of-the-mine case in which an appellate court had reached an opposite conclusion from a trial court in a unitary judicial system, there would be little reason for invocation of this Court's discretionary jurisdiction to make a third set of findings. But unfortunately for the smooth functioning of our federal system, which consists of 50 state judicial systems and one national judicial system, this is not such a run-of-the-mine case. Instead, this case presents important questions regarding the role to be played by the federal courts in the exercise of the habeas corpus jurisdiction conferred upon them by 28 U.S.C. § 2254.It has long been established, as to those constitutional issues which may properly be raised under § 2254, that even a single Page 449 U. S. 544 federal judge may overturn the judgment of the highest court of a State insofar as it deals with the application of the United States Constitution or laws to the facts in question. As might be imagined, this result was not easily arrived at under the Habeas Corpus Act of 1867, the predecessor to 28 U.S.C. § 2254. But the present doctrine, adumbrated in the Court's opinion in Moore v. Dempsey, 261 U. S. 86 (1923), and culminating in this Court's opinion in Fay v. Noia, 372 U. S. 391 (1963), is that the Act of 1867 allows such collateral attack.The petitioner asserts that, in reaching its decision, the majority of the Court of Appeals for the Ninth Circuit failed to observe certain limitations on its authority specifically set forth in 28 U.S.C. § 2254(d). Section 2254(d) provides:"(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit -- ""(1) that the merits of the factual dispute were not resolved in the State court hearing;""(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;""(3) that the material facts were not adequately developed at the State court hearing;""(4) that the State court lacked jurisdiction of the Page 449 U. S. 545 subject matter or over the person of the applicant in the State court proceeding;""(5) that the applicant was an indigent and he State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;""(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or""(7) that the applicant was otherwise denied due process of law in the State court proceeding;""(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:""And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous."It is obvious from a literal reading of the above that § 2254(d) is applicable to the present situation, although it has been contended that this should not be the case where a state appellate court, as opposed to a trial court, makes the Page 449 U. S. 546 pertinent factual findings. We, however, refuse to read this limitation into § 2254(d). [Footnote 1] Admittedly, the California Court of Appeal made the factual determinations at issue here, and it did so after a review of the trial court record. Nevertheless, it clearly held a "hearing" within the meaning of § 2254(d). Both respondent and the State were formally before the court. Respondent was given an opportunity to be heard and his claim received plenary consideration even though he failed to raise it before the trial court. After respondent presented his case to the state appellate court, that court concluded in a written opinion that "the facts of the present case" did not adequately support respondent's claim. Since that court was requested to determine the issue by respondent, we do not think he may now be heard to assert that its proceeding was not a "hearing" within the meaning of § 2254(d).Section 2254(d) applies to cases in which a state court of competent jurisdiction has made "a determination after a hearing on the merits of a factual issue." It makes no distinction between the factual determinations of a state trial court and those of a state appellate court. Nor does it specify any procedural requirements that must be satisfied for there to be a "hearing on the merits of a factual issue," other than that the habeas applicant and the State or its agent be parties to the state proceeding, and that the state court determination be evidenced by "a written finding, written Page 449 U. S. 547 opinion, or other reliable and adequate written indicia." Section 2254(d), by its terms, thus applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. Cf. Swenson v. Stidham, 409 U. S. 224, 409 U. S. 230 (1972). This interest in federalism recognized by Congress in enacting § 2254(d) requires deference by federal courts to factual determinations of all state courts. This is true particularly in a case such as this, where a federal court makes its determination based on the identical record that was considered by the state appellate court and where there was no reason for the state trial court to consider the issue, because respondent failed to raise the issue at that level. See Souza v. Howard, 488 F.2d 462 (CA1 1973). In fact, if the state appellate court here had declined to rule on the "identification" issue because it had not been properly raised in the trial court, the federal court would have been altogether barred from considering it absent a showing of "cause" and "prejudice." Wainwright v. Sykes, 433 U. S. 72 (1977) .Given the applicability of § 2254(d) to the present case, it is apparent that the Court of Appeals for the Ninth Circuit did not apply the "presumption of correctness" which is mandated by the statute to the factual determinations made by the California state courts. Indeed, the court did not even refer in its opinion to § 2254(d). [Footnote 2] Last Term, we denied Page 449 U. S. 548 certiorari in Lombard v. Taylor, 445 U.S. 946 (1980), in which a New York prosecutor sought certiorari from a judgment of the Court of Appeals for the Second Circuit. That court had held in a § 2254 action that the habeas petitioner had been the victim of knowing use of perjured testimony at his trial, and reversed the District Court's refusal to grant the writ. In that case, however, the Federal Court of Appeals indicated in the course of its opinion full awareness of § 2254(d), and, after an examination of the same documentary evidence on which the state court relied, it expressly concluded that the state court finding to the contrary was not entitled to deference by reason of § 2254(d). Taylor v. Lombard, 606 F.2d 371, 375 (1979). The approach of the Court of Appeals for the Ninth Circuit in the instant case was quite different. Its only reference to the previous state court decision and collateral proceedings was to state in one sentence that"[t]he Petition followed the appellant's conviction of murder in a California state court and his exhaustion of all available state court remedies."611 F.2d at 755. From this statement, its opinion went directly to a discussion of the "facts" and constitutional merits of the respondent's claims.Undoubtedly, a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit. This, however, was not the situation presented here. To the contrary, the Court of Appeals reached a conclusion which was in conflict with the conclusion reached by every other state and federal judge after reviewing the Page 449 U. S. 549 exact same record. Reading the court's opinion in conjunction with § 2254(d), it is clear that the court could not have even implicitly relied on paragraphs 1 through 7 of § 2254(d) in reaching its decision. It is impossible to tell whether the majority of the court relied on paragraph 8, because its opinion gives no indication that § 2254 was even considered.Obviously, if the Court of Appeals in this case or any other court of appeals had simply inserted a boilerplate paragraph in its opinion that it had considered the state record as a whole and concluded that the state appellate court's factual determinations were not fairly supported by the record, this objection to the judgment of the Court of Appeals could not as easily be made. Just as obviously, this would be a frustration of the intent of Congress in enacting 2254(d). Reference can be made to Rule 52 of the Federal Rules of Civil Procedure, which requires a United States district court following a bench trial to "find the facts specially and state separately its conclusions of law thereon. . . ." It is a matter of common knowledge that, on some occasions, a district judge will simply take findings of fact and conclusions of law prepared by the party whom the judge has indicated at the close of trial shall prevail and, without alteration, adopt them as his own. However, a requirement such as is imposed by Rule 52 undoubtedly makes a judge more aware that it is his own imprimatur that is placed on the findings of fact and conclusions of law, whoever may prepare them. When Congress provided in § 2254(d) that a habeas court could not dispense with the "presumption of correctness" embodied therein unless it concluded that the factual determinations were not supported by the record, it contemplated at least some reasoned written references to § 2254(d) and the state court findings. State judges, as well as federal judges, swear allegiance to the Constitution of the United States, and there is no reason to think that, because of their frequent differences of opinions as to how that document should be interpreted, all are not doing their mortal best to discharge their oath of office. Page 449 U. S. 550Federal habeas has been a source of friction between state and federal courts, and Congress obviously meant to alleviate some of that friction when it enacted subsection (d) in 1966 as an amendment to the original Federal Habeas Act of 1867. Accordingly, some content must be given to the provisions of the subsection if the will of Congress be not frustrated. Since the 1966 amendment, this Court has had few opportunities to address the various provisions of subsection (d), and never in a context similar to the one presented here. See, e.g., Cuyler v. Sullivan, 446 U. S. 335 (1980); LaVallee v. Delle Rose, 410 U. S. 690 (1973). A writ issued at the behest of a petitioner under 28 U.S. C § 2254 is in effect overturning either the factual or legal conclusions reached by the state court system under the judgment of which the petitioner stands convicted, and friction is a likely result. The long line of our cases previously referred to accepted that friction as a necessary consequence of the Federal Habeas Act of 1867, 28 U.S.C. § 2254. But it is clear that, in adopting the 1966 amendment, Congress in § 2254(d) intended not only to minimize that inevitable friction but also to establish that the findings made by the state court system "shall be presumed to be correct" unless one of seven conditions specifically set forth in § 2254(d) was found to exist by the federal habeas court. If none of those seven conditions were found to exist, or unless the habeas court concludes that the relevant state court determination is not "fairly supported by the record,""the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous."(Emphasis supplied.) [Footnote 3] Page 449 U. S. 551Although arising in a much different context, we think the recent language used in Addington v. Texas, 441 U. S. 418 (1979), has no little bearing on the issue here:"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, 397 U. S. 370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision."Id. at 441 U. S. 423.When it enacted the 1966 amendment to 28 U.S.C. § 2254, Congress specified that, in the absence of the previously enumerated factors one through eight, the burden shall rest on the habeas petitioner, whose case by that time had run the entire gamut of a state judicial system, to establish "by convincing evidence that the factual determination of the State court was erroneous." 28 U.S.C. § 2254(d). Thus, Congress meant to insure that a state finding not be overturned merely on the basis of the usual "preponderance of the evidence" standard in such a situation. In order to ensure that this mandate of Congress is enforced, we now hold that a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was "not fairly supported by the record." Such a statement tying the generalities of § 2254(d) to the particular facts of the case at hand will not, we think, unduly burden federal habeas courts even though it will prevent the use of the "boilerplate" language to which we Page 449 U. S. 552 have previously adverted. Moreover, such a statement will have the obvious value of enabling courts of appeals and this Court to satisfy themselves that the congressional mandate has been complied with. No court reviewing the grant of an application for habeas corpus should be left to guess as to the habeas court's reasons for granting relief notwithstanding the provisions of § 2254(d). Cf. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 851 (1970)Having said this, we are not to be understood as agreeing or disagreeing with the majority of the Court of Appeals on the merits of the issue of impermissibly suggestive identification procedures. Both the California courts and the federal courts relied on the basic Simmons case for their legal analysis. Applying the same test, the majority of the Court of Appeals for the Ninth Circuit reached a different determination than had all the other courts which considered the issue. Assuredly, this is not the first nor the last time that such a result will occur. We do think, however, that Congress was intent on some sort of written explanation of the § 2254(d) factors when such a result does occur. The judgment of the Court of Appeals for the Ninth Circuit is accordingly vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtSumner v. Mata, 449 U.S. 539 (1981)Sumner v. Mata, 449 U.S. 539 (1981)No. 79-1601Argued December 9, 1980Decided January 21, 1981449 U.S. 539SyllabusRespondent was convicted of first-degree murder in a California state court after a trial at which eyewitnesses identified him as participating in the murder. The California Court of Appeal affirmed, rejecting respondent's contention, made for the first time, that the pretrial photographic identification employed by the police violated his Fourteenth Amendment due process rights. The court concluded upon review of the trial record that "the facts of the present case" did not adequately support respondent's claim. Respondent did not seek review by the California Supreme Court, but later raised the pretrial identification issue in state habeas corpus proceedings, which resulted in denial of relief by the trial court, the California Court of Appeal, and the California Supreme Court. Respondent then sought federal habeas corpus relief pursuant to 28 U.S.C. $ 2254, but the Federal District Court denied the petition. The United States Court of Appeals, employing the same standard used by the state courts, reversed. On the basis of findings considerably at odds with the findings of the California Court of Appeal, the United States Court of Appeals, after reviewing the state court trial record, concluded that the photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The Court of Appeals' opinion did not refer to 28 U.S.C. $ 2254(d), which provides that, in federal habeas corpus proceedings instituted by a state prisoner, "a determination after a hearing on the merits of a factual issue" made by a state court of competent jurisdiction and "evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct" unless one of seven specified conditions is found to exist or unless the habeas court concludes that the relevant state court determination "is not fairly supported by the record."Held: The Court of Appeals did not properly analyze respondent's challenge to his state court conviction, given the limited nature of the review provided federal courts by § 2254. Pp. 449 U. S. 543-552.(a) Section 2254(d) applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. The California Court of Appeal held a "hearing" within the meaning of Page 449 U. S. 540 § 2254(d), since both respondent and the State were formally before the court, respondent was given an opportunity to be heard, and his claim received plenary consideration. The interest in federalism recognized by Congress in enacting § 2254(d) requires deference by federal courts to factual determinations of all state courts, and this is true particularly in a case such as this, where a federal court makes its determination based on the identical record that was considered by the state appellate court, and where there was no reason for the state trial court to consider the issue because respondent failed to raise it at that level. Pp. 449 U. S. 545-547.(b) Given the applicability of § 2254(d) to the present case, it is not apparent that the Court of Appeals, whose opinion gave no indication that § 2254 was even considered, applied the "presumption of correctness" which is mandated by the statute to the factual determinations made by the California state court. When Congress provided in § 2254(d) that a habeas court could not dispense with the "presumption of correctness" embodied therein unless it concluded that the factual determinations were not supported by the record, it contemplated at least some reasoned written references (not present here) to § 2254(d) and the state court findings. Pp. 449 U. S. 547-549.(c) In providing in § 2254(d) that, absent any of the enumerated factors, the burden rests on the habeas petitioner to establish "by convincing evidence that the factual determination of the State court was erroneous," Congress meant to insure that a state finding not be overturned merely on the basis of the usual "preponderance of the evidence" standard. To ensure that this mandate of Congress is enforced, a federal habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was "not fairly supported by the record." Pp. 449 U. S. 550-552.611 F.2d 754, vacated and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and POWELL, JJ., joined. BLACKMUN, J., filed a statement concurring in the result, post, p. 449 U. S. 552. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 449 U. S. 552 Page 449 U. S. 541

1999_98-1255

challenges are exercised. None of them demands that a defendant use or refrain from using a challenge on a particular basis or when a particular set of facts is present. To date this Court has recognized only one substantive control over a federal criminal defendant's choice of whom to challenge peremptorily. Under the Equal Protection Clause, a defendant may not exercise a challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race. See, e. g., Batson v. Kentucky, 476 U. S. 79. The Court declines to read into Rule 24, or otherwise impose, the further control advanced by the Government. Pp. 314-315.(d) However, the Court agrees with the Government's narrower contention that Rule 24(b) was not violated in this case. The Ninth Circuit erred in concluding that the District Court's mistake compelled Martinez-Salazar to challenge Gilbert peremptorily, thereby reducing his allotment of peremptory challenges by one. A hard choice is not the same as no choice. Martinez-Salazar received and exercised 11 peremptory challenges. That is all he is entitled to under the Rule. After objecting to the District Court's denial of his for-cause challenge, he had the option of letting Gilbert sit on the petit jury and, upon conviction, pursuing a Sixth Amendment challenge on appeal. Instead, he elected to use a challenge to remove Gilbert. In choosing to remove Gilbert rather than taking his chances on appeal, Martinez-Salazar did not lose a peremptory challenge. Rather, he used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury. See, e. g., J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 137, n. 8. Moreover, the immediate choice he confronted comports with the reality of the jury selection process. Challenges for cause and rulings upon them are fast paced, made on the spot and under pressure. Counsel as well as court in that process must be prepared promptly to decide, often between shades of gray. Pp. 315-317.(e) Martinez-Salazar and his codefendant were accorded the exact number of peremptory challenges that federal law allowed; he cannot tenably assert any violation of his Fifth Amendment due process right. See Ross, 487 U. S., at 91. P. 317.146 F.3d 653, reversed.GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, THOMAS, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, post, p. 317. SCALIA, J., filed an opinion concurring in the judgment, in which KENNEDY, J., joined, post, p.318.307Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Robinson, David C. Frederick, and Richard A. Friedman.Michael D. Gordon, by appointment of the Court, 527 U. S. 1054, argued the cause and filed a brief for respondent. *JUSTICE GINSBURG delivered the opinion of the Court.In Ross v. Oklahoma, 487 U. S. 81 (1988), this Court reaffirmed that "peremptory challenges [to prospective jurors] are not of constitutional dimension," id., at 88; rather, they are one means to achieve the constitutionally required end of an impartial jury. We address in this case a problem in federal jury selection left open in Ross. See id., at 91, n. 4. We focus on this sequence of events: the erroneous refusal of a trial judge to dismiss a potential juror for cause, followed by the defendant's exercise of a peremptory challenge to remove that juror. Confronting that order of events, the United States Court of Appeals for the Ninth Circuit ruled that the Due Process Clause of the Fifth Amendment requires automatic reversal of a conviction whenever the defendant goes on to exhaust his peremptory challenges during jury selection. 146 F.3d 653 (1998).We reverse the Ninth Circuit's judgment. We reject the Government's contention that under federal law, a defendant is obliged to use a peremptory challenge to cure the judge's error. We hold, however, that if the defendant elects to cure such an error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right.*David A. Reiser and Barbara Bergman filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.308IRespondent Abel Martinez-Salazar and a codefendant were tried by a jury in the United States District Court for the District of Arizona for a variety of narcotics and weapons offenses. As Rule 24(b) of the Federal Rules of Criminal Procedure instructs, the District Court allotted the codefendants 10 peremptory challenges exercisable jointly in the selection of 12 jurors. Martinez-Salazar and his codefendant also received an additional peremptory challenge exercisable in the selection of an alternate juror. See Fed. Rule Crim. Proc. 24(c).Prior to jury selection, the District Court gave the prospective jurors a written questionnaire to complete. See 146 F. 3d, at 654-655. A potential juror, Don Gilbert, indicated on his questionnaire that he would favor the prosecution. Id., at 655. In a discussion with the trial judge, Gilbert restated: "[A]ll things being equal, I would probably tend to favor the prosecution." Ibid. The judge explained that the burden of proving a person guilty rests with the Government. Gilbert said he would not disagree with that proposition. The judge next asked Gilbert whether, if he were a defendant facing jurors with backgrounds and opinions similar to his own, he thought he would get a fair trial. Gilbert answered: "I think that's a difficult question. I don't think I know the answer to that." Ibid. MartinezSalazar's counsel then inquired whether Gilbert would feel more comfortable erring on the side of the prosecution or the defense. Gilbert responded: "I would probably be more favorable to the prosecution. I suppose most people are. I mean, they're predisposed. You assume that people are on trial because they did something wrong." Ibid. The judge then told Gilbert that his response was "contrary to our whole system of justice. When people are accused of a crime, there's no presumption ... of guil[t]. The presumption is the other way." Ibid. Gilbert replied, "I understand that in theory." Ibid.309At the completion of this colloquy, Martinez-Salazar and his codefendant challenged Gilbert for cause. The Government opposed the challenge. The District Court declined to excuse Gilbert for cause, stating: "You know about him and know his opinions. He said ... he could follow the instructions, and he said ... 'I don't think I know what I would do,' et cetera. So I think you have reasons to challenge him[,] ... strike him if you choose to do that." Ibid.After twice objecting, unsuccessfully, to the for-cause ruling, Martinez-Salazar used a peremptory challenge to remove Gilbert. Martinez-Salazar and his codefendant subsequently exhausted all of their peremptory challenges. The codefendants did not request an additional peremptory challenge for selection of the petit jury (a request Rule 24(b) expressly permits a district court to grant when there are multiple defendants). See Tr. of Oral Arg. 34-35. At the close of jury selection, the District Court read out the names of the jurors to be seated and asked if the prosecutor or defense counsel had any objections to any of those jurors. Martinez-Salazar's counsel responded: "None from us." App. 182. At the conclusion of the trial, Martinez-Salazar was convicted on all counts.On appeal, Martinez-Salazar contended that the District Court abused its discretion in refusing to strike Gilbert for cause and that this error forced Martinez-Salazar to use a peremptory challenge on Gilbert. The Ninth Circuit agreed (and the Government here does not contest) that the District Court's refusal to strike Gilbert for cause was an abuse of discretion. 146 F. 3d, at 656. This error, the Court of Appeals held, did not violate the Sixth Amendment, because Gilbert was removed and the impartiality of the jury eventually seated was not challenged. Id., at 657. But the Court of Appeals further concluded that the District Court's mistake resulted in a violation of Martinez-Salazar's Fifth Amendment due process rights. According to the Ninth Circuit, the District Court's error in denying the for-cause310challenge forced Martinez-Salazar to use a peremptory challenge curatively, thereby impairing his right to the full complement of peremptory challenges to which federal law entitled him. Such an error, the Court of Appeals held, requires automatic reversal. Id., at 659.Judge Rymer dissented in part. She observed that nothing in the text of Rule 24(b) suggests that the exercise of peremptory challenges is impaired if the defendant uses a challenge to remove a juror who should have been excused for cause. Id., at 659-660. Martinez-Salazar, she emphasized, never asserted in the District Court that he wished to strike some other juror with the peremptory challenge he used to remove Gilbert, nor did he question the impartiality of the jury as finally composed. Id., at 660. Assuming, arguendo, that there was a violation of Rule 24(b), Judge Rymer "would not engraft [onto the Due Process Clause] a common law remedy of per se reversal for a Rule violation." Id., at 661. The court's decision "[clonstitutionalizing the impairment of peremptory challenges," she underscored, ran counter to this Court's decision in Ross and was hardly "inconsequential" in view of the reality that "[t]rial courts, state and federal, rule on cause challenges by the minute." Id., at 659, 661.The Courts of Appeals have divided on the question whether a defendant's peremptory challenge right is impaired when he peremptorily challenges a potential juror whom the district court erroneously refused to excuse for cause, and the defendant thereafter exhausts his peremptory challenges. The First and Fifth Circuits have indicated agreement with the Ninth Circuit that this circumstance constitutes an abridgment of the right to exercise peremptory challenges. See United States v. Cambara, 902 F.2d 144, 147-148 (CAl1990); United States v. Hall, 152 F.3d 381, 408 (CA5 1998). The Tenth and Eleventh Circuits, on the other hand, have found in this situation no impairment of the right to peremptory challenges. See United States v. Brooks, 161311F. 3d 1240, 1245-1246 (CAlO 1998); United States v. Farmer, 923 F.2d 1557, 1566 (CAll 1991).1 We granted certiorari, 527 U. S. 1021 (1999), and now reverse the Ninth Circuit's judgment.IIThe peremptory challenge is part of our common-law heritage. Its use in felony trials was already venerable in Blackstone's time. See 4 W. Blackstone, Commentaries 346348 (1769). We have long recognized the role of the peremptory challenge in reinforcing a defendant's right to trial by an impartial jury. See, e. g., Swain v. Alabama, 380 U. S. 202, 212-213, 218-219 (1965); Pointer v. United States, 151 U. S. 396, 408 (1894). But we have long recognized, as well, that such challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal constitutional dimension. Ross, 487 U. S., at 88; see Stilson v. United States, 250 U. S. 583, 586 (1919) ("There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges.").Legislative provision for peremptory challenges in federal criminal trials dates from 1790. See Act of Apr. 30, 1790, ch. 9, § 30, 1 Stat. 119. Since 1946, Rule 24 of the Federal Rules of Criminal Procedure has provided the governing instructions. That Rule, reproduced in its entirety below,21 There is a corresponding conflict among the Circuits in civil cases.Compare Kirk v. Raymark Industries, Inc., 61 F.3d 147, 157 (CA3 1995) (right to peremptory challenge is impaired when a party exercises such a challenge to strike a prospective juror who should have been removed for cause), with Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1122-1123 (CAlO 1995) (no impairment).2 Rule 24. Trial Jurors."(a) EXAMINATION. The court may permit the defendant or the defendant's attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or the defendant's attorney and the attorney for the government to supplement the examina-312prescribes that for offenses "punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges." Fed. Rule Crim. Proc. 24(b). In a multiple-defendant case, the district court "may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly." Ibid. The Rule also provides for further peremptory challenges when alternate jurors are to be impanelled; when, as in MartinezSalazar's case, an alternate is to be selected, each side is entitled to one peremptory challenge in selecting that juror.tion by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper."(b) PEREMPTORY CHALLENGES. If the offense charged is punishable by death, each side is entitled to 20 peremptory challenges. If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges. If the offense charged is punishable by imprisonment for not more than one year or by fine or both, each side is entitled to 3 peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly."(c) ALTERNATE JURORS. The court may direct that not more than 6 jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if 1 or 2 alternate jurors are to be impanelled, 2 peremptory challenges if 3 or 4 alternate jurors are to be impanelled, and 3 peremptory challenges if 5 or 6 alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate jury only, and the other peremptory challenges allowed by these rules may not be used against an alternate juror."313Fed. Rule Crim. Proc. 24(c). The question to which we now turn is whether Martinez-Salazar was denied any right for which Rule 24 provides.IIIOur most recent decision in point is Ross v. Oklahoma.That 1988 decision dealt with a question resembling the one presented here, although the issue in Ross arose in a statelaw setting. The defendant in Ross exercised a peremptory challenge to cure the trial court's error in denying a challenge for cause. We first rejected, as the Ninth Circuit rightly did in the decision under review, the position that, without more, "the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury." 487 U. S., at 88. "So long as the jury that sits is impartial," we held, "the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Ibid. We then took up the defendant's due process objection. He argued that forced use of a peremptory challenge to cure a trial court's error in denying a challenge for cause "arbitrarily depriv[ed] him of the full complement of ... peremptory challenges allowed under Oklahoma law." Id., at 89. An Oklahoma statute accorded the defendant nine peremptory challenges. Oklahoma courts had read into that grant a requirement that "a defendant who disagrees with the trial court's ruling on a for-cause challenge must, in order to preserve the claim that the ruling deprived him of a fair trial, exercise a peremptory challenge to remove the juror." Ibid. Even then, under Oklahoma law, "the error [was] grounds for reversal only if the defendant exhaust[ed] all peremptory challenges and an incompetent juror [was] forced upon him." Ibid. The defendant in Ross, we therefore concluded, did not lose any right conferred by state law when he used one of his nine challenges to remove a juror who should have been excused for cause. Because the defendant received all that state law allowed him, and the fair trial that the Federal Constitution314guaranteed, we rejected his due process challenge. Id., at 90-91.Underlying the Court of Appeals holding in this case was the notion that the District Court's error in denying the challenge for cause "forced" Martinez-Salazar to use a peremptory challenge to remove the objectionable venire member. 146 F. 3d, at 659. Starting from this premise, the Court of Appeals reasoned that Rule 24(b) was violated because Martinez-Salazar could effectively exercise only nine of the ten initial peremptory challenges for which the Rule provided. The Court of Appeals further concluded that "due process is violated when a defendant is forced to exercise a peremptory challenge to cure an erroneous for-cause refusal." Id., at 658.The Government urges us to reverse the Court of Appeals judgment on the ground that federal law, like the Oklahoma statute considered in Ross, should be read to require a defendant to use a peremptory challenge to strike a juror who should have been removed for cause, in order to preserve the claim that the for-cause ruling impaired the defendant's right to a fair trial. Brief for United States 19-22. In support of its position, the Government points to various limitations on the exercise of peremptory challenges that this Court has sanctioned-limitations that could be viewed as effectively reducing the number of challenges available to a defendant. See Reply Brief 3 (citing Stilson, 250 U. S., at 586 (sharing of peremptories among codefendants); St. Clair v. United States, 154 U. S. 134, 147-148 (1894) (requirement that parties exercise or waive peremptory strike as each potential juror is selected at random and qualified); Pointer, 151 U. S., at 409, 412 (simultaneous defense and prosecution strikes)). The cases on which the Government relies address procedures under which peremptory challenges are exercised. None of them demands that a defendant use or refrain from using a peremptory challenge on a particular basis or when a particular set of facts is present. To date315this Court has recognized only one substantive control over a federal criminal defendant's choice of whom to challenge peremptorily. Under the Equal Protection Clause, a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race. See, e. g., J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 (1994) (gender); Hernandez v. New York, 500 U. S. 352 (1991) (ethnic origin); Batson v. Kentucky, 476 U. S. 79 (1986) (race). We decline to read into Rule 24, or otherwise impose, the further control advanced by the Government.We agree, however, with the Government's narrower contention that Rule 24(b) was not violated in this case. Reply Brief 2-3. The Court of Appeals erred in concluding that the District Court's for-cause mistake compelled MartinezSalazar to challenge Gilbert peremptorily, thereby reducing his allotment of peremptory challenges by one. 146 F. 3d, at 659. A hard choice is not the same as no choice. Martinez-Salazar, together with his codefendant, received and exercised 11 peremptory challenges (10 for the petit jury, 1 in selecting an alternate juror). That is all he is entitled to under the Rule.After objecting to the District Court's denial of his forcause challenge, Martinez-Salazar had the option of letting Gilbert sit on the petit jury and, upon conviction, pursuing a Sixth Amendment challenge on appeal. Instead, MartinezSalazar elected to use a challenge to remove Gilbert because he did not want Gilbert to sit on his jury. This was Martinez-Salazar's choice.3 The District Court did not demand-and Rule 24(b) did not require-that MartinezSalazar use a peremptory challenge curatively.In choosing to remove Gilbert rather than taking his chances on appeal, Martinez-Salazar did not lose a peremp-3 The choice would be less hard, of course, if, as JUSTICE SCALIA hypothesizes, the "defendant had plenty of peremptories left." See post, at 319 (opinion concurring in judgment).316tory challenge. Rather, he used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury. See, e. g., J. E. B., 511 U. S., at 137, n. 8 (purpose of peremptory challenges "'is to permit litigants to assist the government in the selection of an impartial trier of fact''') (quoting Edmonson v. Leesville Concrete Co., 500 U. S. 614, 620 (1991)); Georgia v. McCollum, 505 U. S. 42, 57 (1992) (peremptory challenges are "one state-created means to the constitutional end of an impartial jury and a fair trial"); Frazier v. United States, 335 U. S. 497, 505 (1948) ("the right [to peremptory challenges] is given in aid of the party's interest to secure a fair and impartial jury"). Moreover, the immediate choice Martinez-Salazar confronted-to stand on his objection to the erroneous denial of the challenge for cause or to use a peremptory challenge to effect an instantaneous cure of the error-comports with the reality of the jury selection process. Challenges for cause and rulings upon them, as Judge Rymer observed, see supra, at 310, are fast paced, made on the spot and under pressure. Counsel as well as court, in that setting, must be prepared to decide, often between shades of gray, "by the minute." 146 F. 3d, at 661.In conclusion, we note what this case does not involve. It is not asserted that the trial court deliberately misapplied the law in order to force the defendants to use a peremptory challenge to correct the court's error. See Ross, 487 U. S., at 91, n. 5. Accordingly, no question is presented here whether such an error would warrant reversal. Nor did the District Court's ruling result in the seating of any juror who should have been dismissed for cause. As we have recognized, that circumstance would require reversal. See id., at 85 ("Had [the biased juror] sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court's failure to remove [the juror] for cause, the sentence would have to be overturned."); see also Parker v. Gladden, 385 U. S. 363, 366317(1966) (per curiam) (a defendant is "entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors").4***We answer today the question left open in Ross and hold that a defendant's exercise of peremptory challenges pursuant to Rule 24(b) is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause. Martinez-Salazar and his codefendant were accorded 11 peremptory challenges, the exact number Rule 24(b) and (c) allowed in this case. Martinez-Salazar received precisely what federal law provided; he cannot tenably assert any violation of his Fifth Amendment right to due process. See Ross, 487 U. S., at 91. For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit isReversed

OCTOBER TERM, 1999SyllabusUNITED STATES v. MARTINEZ-SALAZARCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 98-1255. Argued November 29, 1999-Decided January 19,2000Respondent Martinez-Salazar and a codefendant were charged with a variety of federal offenses. As the Federal Rules of Criminal Procedure instruct, the District Court allotted them 10 peremptory challenges exercisable jointly in the selection of 12 jurors, Rule 24(b), and another such challenge exercisable in the selection of an alternate juror, Rule 24(c). Because prospective juror Don Gilbert indicated several times that he would favor the prosecution, the codefendants challenged him for cause, but the District Court declined to excuse him. After twice objecting, unsuccessfully, to the for-cause ruling, Martinez-Salazar used a peremptory challenge to remove Gilbert. The codefendants subsequently exhausted all of their peremptory challenges. At the close of jury selection, the District Court read the names of the jurors to be seated and asked if the prosecutor or defense counsel had any objections to any of those jurors. Martinez-Salazar's counsel responded: "None from us." At the conclusion of the trial, Martinez-Salazar was convicted on all counts. On appeal, the Ninth Circuit agreed with him (and the Government here does not contest) that the District Court's refusal to strike Gilbert for cause was an abuse of discretion. This error, the Ninth Circuit held, did not violate the Sixth Amendment, because Gilbert was removed and the impartiality of the jury eventually seated was not challenged. But the Court of Appeals further concluded that the District Court's mistake resulted in a violation of Martinez-Salazar's Fifth Amendment due process rights because it forced him to use a peremptory challenge curatively, thereby impairing his right to the full complement of peremptory challenges to which federal law entitled him. Such an error, the Court of Appeals held, requires automatic reversal.Held: A defendant's exercise of peremptory challenges pursuant to Rule 24 is not denied or impaired when the defendant chooses to use such a challenge to remove a juror who should have been excused for cause. Pp.311-317.(a) Although the peremptory challenge plays an important role in reinforcing a defendant's constitutional right to trial by an impartial jury, see, e. g., Swain v. Alabama, 380 U. S. 202, 212-213, 218-219, this Court has long recognized that such challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory305challenges are not of federal constitutional dimension, see, e. g., Ross v. Oklahoma, 487 U. S. 81, 88. Peremptory challenges in federal criminal trials are governed by Rule 24 of the Federal Rules of Criminal Procedure. Rule 24(b) prescribes, inter alia, that for offenses "punishable by imprisonment for more than one year, ... the defendant or defendants [are] jointly [entitled] to 10 peremptory challenges." Rule 24(c) further provides that when, as in this case, an alternate juror is to be selected, each side is entitled to one peremptory challenge in selecting that juror. The question to which the Court turns is whether Martinez-Salazar was denied any right for which Rule 24 provides. Pp. 311-313.(b) Ross dealt with a state-law question resembling the one presented here. This Court first rejected the Ross defendant's position that, without more, the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. 487 U. S., at 88. So long as the jury that sits is impartial, the Court held, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. Ibid. The Court then rejected the defendant's due process objection that forced use of a peremptory challenge to cure a trial court's error in denying a challenge for cause arbitrarily deprived him of the full complement of peremptory challenges allowed under Oklahoma law. Id., at 89. An Oklahoma statute accorded the defendant nine such challenges. Oklahoma courts had read into that grant a requirement that a defendant who disagreed with the trial court's ruling on a for-cause challenge must, in order to preserve the claim that the ruling deprived him of a fair trial, exercise a peremptory challenge to remove the juror. Ibid. Even then, under state law, the error was grounds for reversal only if the defendant exhausted all peremptory challenges, and an incompetent juror therefore was forced upon him. Ibid. The defendant in Ross, the Court concluded, did not lose any state-law right when he used one of his nine challenges to remove a juror who should have been excused for cause; rather, he received all that state law allowed him, and the fair trial that the Federal Constitution guaranteed. Id., at 90-91. Pp. 313-314.(c) This Court rejects the Government's contention that federal law, like the Oklahoma statute considered in Ross, should be read to require a defendant to use a peremptory challenge to strike a juror who should have been removed for cause, in order to preserve the claim that the for-cause ruling impaired the defendant's right to a fair trial. Although this Court has sanctioned various limitations on the exercise of peremptory challenges that could be viewed as effectively reducing the number of challenges available to a defendant, see, e. g., Stilson v. United States, 250 U. S. 583, 586, these cases address procedures under which such306Full Text of Opinion

1990_90-333

JUSTICE BLACKMUN delivered the opinion of the Court, except as to Part II-A.In this litigation, we must determine which statute of limitations is applicable to a private suit brought pursuant to § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b), and to Securities and Exchange Commission Rule 10b-5, 17 CFR § 240.10b-5 (1990), promulgated thereunder.IThe controversy arises from the sale of seven Connecticut limited partnerships formed for the purpose of purchasing and leasing computer hardware and software. Petitioner Lampf, Pleva, Lipkind, Prupis & Petigrow is a West Orange, N.J., law firm that aided in organizing the partnerships and that provided additional legal services, including the preparation of opinion letters addressing the tax consequences of investing in the partnerships. The several plaintiff-respondents purchased units in one or more of the partnerships during the years 1979 through 1981 with the expectation of realizing federal income tax benefits therefrom.The partnerships failed, due in part to the technological obsolescence of their wares. In late 1982 and early 1983, plaintiff-respondents received notice that the United States Internal Revenue Service was investigating the partnerships. The IRS subsequently disallowed the claimed tax benefits because of overvaluation of partnership assets and lack of profit motive.On November 3, 1986, and June 4, 1987, plaintiff-respondents filed their respective complaints in the United States District Court for the District of Oregon, naming as defendants petitioner and others involved in the preparation Page 501 U. S. 353 of offering memoranda for the partnerships. The complaints alleged that plaintiff-respondents were induced to invest in the partnerships by misrepresentations in the offering memoranda, in violation of, among other things, § 10(b) of the 1934 Act and Rule 10b-5. The claimed misrepresentations were said to include assurances that the investments would entitle the purchasers to substantial tax benefits; that the leasing of the hardware and software packages would generate a profit; that the software was readily marketable; and that certain equipment appraisals were accurate and reasonable. Plaintiff-respondents asserted that they became aware of the alleged misrepresentations only in 1985, following the disallowance by the IRS of the tax benefits claimed.After consolidating the actions for discovery and pretrial proceedings, the District Court granted summary judgment for the defendants on the ground that the complaints were not timely filed. App. to Pet. for Cert. 22A. Following precedent of its controlling court, see, e.g., Robuck v. Dean Witter & Co., 649 F.2d 641 (CA9 1980), the District Court ruled that the securities claims were governed by the state statute of limitations for the most analogous forum state cause of action. The court determined this to be Oregon's 2-year limitations period for fraud claims, Ore.Rev.Stat. § 12.110(1) (1989). The court found that reports to plaintiff-respondents detailing the declining financial status of each partnership and allegations of misconduct made known to the general partners put plaintiff-respondents on "inquiry notice" of the possibility of fraud as early as October, 1982. App. to Pet. for Cert. 43A. The court also ruled that the distribution of certain fiscal reports and the installation of a general partner previously associated with the defendants did not constitute fraudulent concealment sufficient to toll the statute of limitations. Applying the Oregon statute to the facts underlying plaintiff-respondents' claims, the District Court determined that each complaint was time-barred. Page 501 U. S. 354The Court of Appeals for the Ninth Circuit reversed and remanded the cases. See, e.g., Retz v. Leasing Consultants Associates, 895 F.2d 1418 (1990) (judgment order). In its unpublished opinion, the Court of Appeals found that unresolved factual issues as to when plaintiff-respondents discovered or should have discovered the alleged fraud precluded summary judgment. Then, as did the District Court, it selected the 2-year Oregon limitations period. In so doing, it implicitly rejected petitioner's argument that a federal limitations period should apply to Rule 10b-5 claims. App. to Pet. for Cert. 8A. In view of the divergence of opinion among the Circuits regarding the proper limitations period for Rule 10b-5 claims, [Footnote 1] we granted certiorari to address this important issue. 498 U.S. 894 (1990).IIPlaintiff-respondents maintain that the Court of Appeals correctly identified common law fraud as the source from which § 10(b) limitations should be derived. They submit that the underlying policies and practicalities of § 10(b) litigation do not justify a departure from the traditional practice of "borrowing" analogous state law statutes of limitations. Petitioner, on the other hand, argues that a federal period is appropriate, contending that we must look to the "1- and 3-year" structure applicable to the express causes of action in § 13 of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U.S.C. § 77m, and to certain of the express actions in the Page 501 U. S. 355 1934 Act, see 15 U.S.C. §§ 78i(e), 78r(c), and 78cc(b). [Footnote 2] The Solicitor General, appearing on behalf of the Securities and Exchange Commission, agrees that use of a federal period is indicated, but urges the application of the 5-year statute of repose specified in § 20A of the 1934 Act, 15 U.S.C. § 78t-1(b)(4), as added by § 5 of the Insider Trading and Securities Fraud Enforcement Act of 1988, 102 Stat. 4681. The 5-year period, it is said, accords with"Congress's most recent views on the accommodation of competing interests, provides the closest federal analogy, and promises to yield the best practical and policy results in Rule 10b-5 litigation."Brief for Securities and Exchange Commission as Amicus Curiae 8. For the reasons discussed below, we agree that a uniform federal period is indicated, but we hold that the express causes of action contained in the 1933 and 1934 Acts provide the source.AIt is the usual rule that, when Congress has failed to provide a statute of limitations for a federal cause of action, a court "borrows" or "absorbs" the local time limitation most analogous to the case at hand. Wilson v. Garcia, 471 U. S. 261, 471 U. S. 266-267 (1985); Automobile Workers v. Hoosier Cardinal Corp., 383 U. S. 696, 383 U. S. 704 (1966); Campbell v. Haverhill, 155 U. S. 610, 155 U. S. 617 (1895). This practice, derived from the Rules of Decision Act, 28 U.S.C. § 1652, has enjoyed sufficient longevity that we may assume that, in enacting remedial legislation, Congress ordinarily "intends by its silence that we borrow state law." Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 483 U. S. 147 (1987).The rule, however, is not without exception. We have recognized that a state legislature rarely enacts a limitations period with federal interests in mind, Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355, 432 U. S. 367 (1977), and when the operation Page 501 U. S. 356 of a state limitations period would frustrate the policies embraced by the federal enactment, this Court has looked to federal law for a suitable period. See, e.g., DelCostello v. Teamsters, 462 U. S. 151 (1983); Agency Holding Corp., supra; McAllister v. Magnolia Petroleum Co., 357 U. S. 221, 357 U. S. 224 (1958). These departures from the state borrowing doctrine have been motivated by this Court's conclusion that it would be "inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law." DelCostello, 462 U.S. at 462 U. S. 161.Rooted as it is in the expectations of Congress, the "state borrowing doctrine" may not be lightly abandoned. We have described federal borrowing as "a closely circumscribed exception," to be made"only 'when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.'"Reed v. United Transportation Union, 488 U. S. 319, 488 U. S. 324 (1989), quoting DelCostello, 462 U.S. at 462 U. S. 172.Predictably, this determination is a delicate one. Recognizing, however, that a period must be selected, [Footnote 3] our cases do provide some guidance as to whether state or federal borrowing is appropriate and as to the period best suited to the cause of action under consideration. From these cases, we are able to distill a hierarchical inquiry for ascertaining the appropriate limitations period for a federal cause of action where Congress has not set the time within which such an action must be brought. Page 501 U. S. 357First, the court must determine whether a uniform statute of limitations is to be selected. Where a federal cause of action tends in practice to "encompass numerous and diverse topics and subtopics," Wilson v. Garcia, 471 U.S. at 471 U. S. 273, such that a single state limitations period may not be consistently applied within a jurisdiction, we have concluded that the federal interests in predictability and judicial economy counsel the adoption of one source, or class of sources, for borrowing purposes. Id. at 471 U. S. 273-275. This conclusion ultimately may result in the selection of a single federal provision, see Agency Holding Corp., supra, or of a single variety of state actions. See Wilson v. Garcia (characterizing all actions under 42 U.S.C. § 1983 as analogous to a state law personal injury action).Second, assuming a uniform limitations period is appropriate, the court must decide whether this period should be derived from a state or a federal source. In making this judgment, the court should accord particular weight to the geographic character of the claim:"The multistate nature of [the federal cause of action at issue] indicates the desirability of a uniform federal statute of limitations. With the possibility of multiple state limitations, the use of state statutes would present the danger of forum shopping and, at the very least, would 'virtually guarante[e] . . . complex and expensive litigation over what should be a straightforward matter.'' Agency Holding Corp., 483 U.S. at 483 U. S. 154, quoting Report of the Ad Hoc Civil RICO Task Force of the ABA Section of Corporation, Banking and Business Law 392 (1985)."Finally, even where geographic considerations counsel federal borrowing, the aforementioned presumption of state borrowing requires that a court determine that an analogous federal source truly affords a "closer fit" with the cause of action at issue than does any available state law source. Although considerations pertinent to this determination will necessarily Page 501 U. S. 358 vary depending upon the federal cause of action and the available state and federal analogues, such factors as commonality of purpose and similarity of elements will be relevant.BIn the present litigation, our task is complicated by the nontraditional origins of the § 10(b) cause of action. The text of § 10(b) does not provide for private claims. [Footnote 4] Such claims are of judicial creation, having been implied under the statute for nearly half a century. See Kardon v. National Gypsum Co., 69 F. Supp. 512 (ED Pa.1946), cited in Ernst & Ernst v. Hochfelder, 425 U. S. 185, 425 U. S. 196, n. 16 (1976). Although this Court repeatedly has recognized the validity of such claims, see Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 421 U. S. 730 (1975); Affiliated Ute Citizens of Utah v. United States, 406 U. S. 128, 406 U. S. 150-154 (1972); Superintendent Page 501 U. S. 359 of Ins. of N.Y. v. Bankers Life & Casualty Co., 404 U. S. 6, 404 U. S. 13, n. 9 (1971), we have made no pretense that it was Congress' design to provide the remedy afforded. See Ernst & Ernst, 425 U.S. at 425 U. S. 196 ("[T]here is no indication that Congress, or the Commission when adopting Rule 10b-5, contemplated such a remedy") (footnotes omitted). It is therefore no surprise that the provision contains no statute of limitations.In a case such as this, we are faced with the awkward task of discerning the limitations period that Congress intended courts to apply to a cause of action it really never knew existed. Fortunately, however, the drafters of § 10(b) have provided guidance.We conclude that where, as here, the claim asserted is one implied under a statute that also contains an express cause of action with its own time limitation, a court should look first to the statute of origin to ascertain the proper limitations period. We can imagine no clearer indication of how Congress would have balanced the policy considerations implicit in any limitations provision than the balance struck by the same Congress in limiting similar and related protections. See DelCostello, 462 U.S. at 462 U. S. 171; United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 451 U. S. 69-70 (1981) (opinion concurring in judgment). When the statute of origin contains comparable express remedial provisions, the inquiry usually should be at an end. Only where no analogous counterpart is available should a court then proceed to apply state borrowing principles.In the present litigation, there can be no doubt that the contemporaneously enacted express remedial provisions represent"a federal statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here -- a statute that is, in fact, an analogy to the present lawsuit more apt than any of the suggested state law parallels."DelCostello, 462 U.S. at 462 U. S. 169. The 1934 Act contained a number of express causes of action, each with an Page 501 U. S. 360 explicit limitations period. With only one more restrictive exception, [Footnote 5] each of these includes some variation of a l-year period after discovery combined with a 3-year period of repose. [Footnote 6] In adopting the 1934 Act, the 73d Congress also amended the limitations provision of the 1933 Act, adopting the l-and-3-year structure for each cause of action contained therein. [Footnote 7]Section 9 of the 1934 Act, 15 U.S.C. § 78i, pertaining to the willful manipulation of security prices, and § 18, 15 U.S.C. § 78r, relating to misleading filings, target the precise dangers that are the focus of § 10(b). Each is an integral element of a complex web of regulations. Each was intended to facilitate a central goal:"to protect investors Page 501 U. S. 361 against manipulation of stock prices through regulation of transactions upon securities exchanges and in over-the-counter markets, and to impose regular reporting requirements on companies whose stock is listed on national securities exchanges."Ernst & Ernst, 425 U.S. at 195, citing S.Rep. No. 792, 73d Cong., 2d Sess., 1-5 (1934).CWe therefore conclude that we must reject the Commission's contention that the 5-year period contained in § 20A, added to the 1934 Act in 1988, is more appropriate for § 10(b) actions than is the 1- and 3-year structure in the Act's original remedial provisions. The Insider Trading and Securities Fraud Enforcement Act of 1988, which became law more than 50 years after the original securities statutes, focuses upon a specific problem, namely, the "purchasing or selling [of] a security while in possession of material, nonpublic information," 15 U.S.C. § 78t-1(a), that is, "insider trading." Recognizing the unique difficulties in identifying evidence of such activities, the 100th Congress adopted § 20A as one of "a variety of measures designed to provide greater deterrence, detection and punishment of violations of insider trading." H.R.Rep. No. 100-910, p. 7 (1988). There is no indication that the drafters of § 20A sought to extend that enhanced protection to other provisions of the 1934 Act. Indeed, the text of § 20A indicates the contrary. Section 20A(d) states:"Nothing in this section shall be construed to limit or condition the right of any person to bring an action to enforce a requirement of this chapter or the availability of any cause of action implied from a provision of this chapter."15 U.S.C. § 78t-1(d).The Commission further argues that, because some conduct that is violative of § 10(b) is also actionable under § 20A, adoption of a 1- and 3-year structure would subject actions based on § 10(b) to two different statutes of limitations. But § 20A also prohibits insider trading activities that violate sections of Page 501 U. S. 362 the 1934 Act with express limitations periods. The language of § 20A makes clear that the 100th Congress sought to alter the remedies available in insider trading cases, and only in insider trading cases. There is no inconsistency.Finally, the Commission contends that the adoption of a 3-year period of repose would frustrate the policies underlying § 10(b). The inclusion, however, of the 1- and 3-year structure in the broad range of express securities actions contained in the 1933 and 1934 Acts suggests a congressional determination that a 3-year period is sufficient. See Ceres Partners v. GEL Associates, 918 F.2d 349, 363 (CA2 1990).Thus, we agree with every Court of Appeals that has been called upon to apply a federal statute of limitations to a § 10(b) claim that the express causes of action contained in the 1933 and 1934 Acts provide a more appropriate statute of limitations than does § 20A. See Ceres Partners, supra; Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385 (CA7 1990), cert. pending, No. 90-526; In re Data Access Systems Securities Litigation, 843 F.2d 1537 (CA3), cert. denied sub nom. Vitiello v. I. Kahlowsky & Co., 488 U.S. 849 (1988).Necessarily, we also reject plaintiff-respondents' assertion that state law fraud provides the closest analogy to § 10(b). The analytical framework we adopt above makes consideration of state law alternatives unnecessary where Congress has provided an express limitations period for correlative remedies within the same enactment. [Footnote 8] Page 501 U. S. 363IIIFinally, we address plaintiff-respondents' contention that, whatever limitations period is applicable to § 10(b) claims, that period must be subject to the doctrine of equitable tolling. Plaintiff-respondents note, correctly, that "[t]ime requirements in law suits . . . are customarily subject to equitable tolling.'" Irwin v. Department of Veterans Affairs, 498 U. S. 89, 498 U. S. 95 (1990), citing Hallstrom v. Tillamook County, 493 U. S. 20, 493 U. S. 27 (1989). Thus, this Court has said that, in the usual case,"where the party injured by the fraud remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party."Bailey v. Glover, 21 Wall. 342, 88 U. S. 348 (1875); see also Holmberg v. Armbrecht, 327 U. S. 392, 327 U. S. 396-397 (1946). Notwithstanding this venerable principle, it is evident that the equitable tolling doctrine is fundamentally inconsistent with the 1- and 3-year structure.The 1-year period, by its terms, begins after discovery of the facts constituting the violation, making tolling unnecessary. The 3-year limit is a period of repose inconsistent with tolling. One commentator explains: "[T]he inclusion of the three-year period can have no significance in this context other than to impose an outside limit." Bloomenthal, The Statute of Limitations and Rule 10b-5 Claims: A Study in Judicial Lassitude, 60 U.Colo.L.Rev. 235, 288 (1989). See also ABA Committee on Federal Regulation of Securities, Report of the Task Force on Statute of Limitations for Implied Actions 645, 655 (1986) (advancing "the inescapable conclusion that Congress did not intend equitable tolling to apply in actions under the securities laws"). Because the purpose of the 3-year limitation is clearly to serve as a cutoff, we hold that tolling principles do not apply to that period. Page 501 U. S. 364IVLitigation instituted pursuant to § 10(b) and Rule 10b-5 therefore must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation. [Footnote 9] As there is no dispute that the earliest of plaintiff-respondents' complaints was filed more than three years after petitioner's alleged misrepresentations, plaintiff-respondents' claims were untimely. [Footnote 10]The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtLampf, Pleva, Lipkind et al. v. Gilbertson, 501 U.S. 350 350 (1991)Lampf, Pleva, Lipkind, Prupis & Petigrow v. GilbertsonNo. 90-333Argued February 19, 1991Decided June 20, 1991501 U.S. 350SyllabusDuring 1979 through 1981, plaintiff-respondents purchased units in seven Connecticut limited partnerships, with the expectation of realizing federal income tax benefits. Among other things, petitioner, a New Jersey law firm, aided in organizing the partnerships and prepared opinion letters addressing the tax consequences of investing. The partnerships failed, and, subsequently, the Internal Revenue Service disallowed the claimed tax benefits. In 1986 and 1987, plaintiff-respondents filed complaints in the Federal District Court for the District of Oregon, alleging that they were induced to invest in the partnerships by misrepresentations in offering memoranda prepared by petitioner and others, in violation of, inter alia, § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, and asserting that they became aware of the alleged misrepresentations only in 1985. The court granted summary judgment for the defendants on the ground that the complaints were not timely filed, ruling that the claims were governed by Oregon's 2-year limitations period for fraud claims, the most analogous forum state statute; that plaintiff-respondents had been on notice of the possibility of fraud as early as 1982; and that there were no grounds sufficient to toll the statute of limitations. The Court of Appeals also selected Oregon's limitations period, but reversed, finding that there were unresolved factual issues as to when plaintiff-respondents should have discovered the alleged fraud.Held: The judgment is reversed.895 F.2d 1416, 1417, and 1418, reversed.JUSTICE BLACKMUN delivered the opinion of the Court with respect to Parts I, II-B, II-C, III, and IV, concluding that:1. Litigation instituted pursuant to § 10(b) and Rule 10b-5 must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation, as provided in the 1934 Act and the Securities Act of 1933. State borrowing principles should not be applied where, as here, the claim asserted is one implied under a statute also containing an express cause of action with its own time limitation. The 1934 Act contemporaneously enacted a number of express remedial provisions actually designed to accommodate a balance of interests very similar to that at stake in this litigation. And the limitations periods in all but one of its causes of action include some variation Page 501 U. S. 351 of a 1-year period after discovery combined with a 3-year period of repose. Moreover, in adopting the 1934 Act, Congress also amended the 1933 Act, adopting the same structure for each of its causes of action. Neither the 5-year period contained in the 1934 Act's insider trading provision, which was added in 1988, nor state law fraud provides a closer analogy to § 10(b). Pp. 501 U. S. 358-362.2. The limitations period is not subject to the doctrine of equitable tolling. The 1-year period begins after discovery of the facts constituting the violation, making tolling unnecessary, and the 3-year limit is a period of repose inconsistent with tolling. P. 501 U. S. 363.3. As there is no dispute that the earliest of plaintiff-respondents complaints was filed more than three years after petitioner's alleged misrepresentations, plaintiff-respondents' claims were untimely. P. 501 U. S. 364.BLACKMUN, J., delivered the opinion of the Court with respect to Parts I, II-B, II-C, III, and IV, in which REHNQUIST, C.J., and WHITE, MARSHALL, and SCALIA, JJ., joined, and an opinion with respect to Part II-A, in which REHNQUIST, C.J., and WHITE and MARSHALL, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 501 U. S. 364. STEVENS, J., filed a dissenting opinion, in which SOUTER, J., joined, post, p. 501 U. S. 366. O'CONNOR, J., filed a dissenting opinion, in which KENNEDY, J., joined, post, p. 501 U. S. 369. KENNEDY, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 501 U. S. 374. Page 501 U. S. 352

1969_387

MR. JUSTICE WHITE delivered the opinion of the Court.Section 1235 of the California Evidence Code, effective as of January 1, 1967, provides that"[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770. [Footnote 1]"In People v. Johnson, 68 Cal. 2d 646, 441 P.2d 111 (1968), cert. denied, 393 U.S. 1051 (1969), the California Supreme Court held that, prior statements of a witness that were not subject to cross-examination when originally made, could not be introduced under this section to prove the charges against a defendant without violating the defendant's right of confrontation guaranteed by the Sixth Amendment and made applicable to Page 399 U. S. 151 the States by the Fourteenth Amendment. In the case now before us, the California Supreme Court applied the same ban to a prior statement of a witness made at a preliminary hearing, under oath and subject to full cross-examination by an adequately counseled defendant. We cannot agree with the California court for two reasons, one of which involves rejection of the holding in People v. Johnson.IIn January, 1967, one Melvin Porter, a 16-year-old minor, was arrested for selling marihuana to an undercover police officer. Four days after his arrest, while in the custody of juvenile authorities, Porter named respondent Green as his supplier. As recounted later by one Officer Wade, Porter claimed that Green had called him earlier that month, had asked him to sell some "stuff" or "grass," and had that same afternoon personally delivered a shopping bag containing 29 "baggies" of marihuana. It was from this supply that Porter had made his sale to the undercover officer. A week later, Porter testified at respondent's preliminary hearing. He again named respondent as his supplier, although he now claimed that, instead of personally delivering the marihuana, Green had showed him where to pick up the shopping bag, hidden in the bushes at Green's parents' house. Porter's story at the preliminary hearing was subjected to extensive cross-examination by respondent's counsel -- the same counsel who represented respondent at his subsequent trial. At the conclusion of the hearing, respondent was charged with furnishing marihuana to a minor in violation of California law.Respondent's trial took place some two months later before a court sitting without a jury. The State's chief witness was again young Porter. But this time, Porter, in the words of the California Supreme Court, proved to be "markedly evasive and uncooperative on the Page 399 U. S. 152 stand." People v. Green, 70 Cal. 2d 654, 657, 451 P.2d 422, 423 (1969). He testified that respondent had called him in January, 1967, and asked him to sell some unidentified "stuff." He admitted obtaining shortly thereafter 29 plastic "baggies" of marihuana, some of which he sold. But, when pressed as to whether respondent had been his supplier, Porter claimed that he was uncertain how he obtained the marihuana, primarily because he was at the time on "acid" (LSD), which he had taken 20 minutes before respondent phoned. Porter claimed that he was unable to remember the events that followed the phone call, and that the drugs he had taken prevented his distinguishing fact from fantasy. See, e.g., App. 7-11, 24-25.At various points during Porter's direct examination, the prosecutor read excerpts from Porter's preliminary hearing testimony. This evidence was admitted under § 1235 for the truth of the matter contained therein. With his memory "refreshed" by his preliminary hearing testimony, Porter "guessed" that he had indeed obtained the marihuana from the backyard of respondent's parents' home, and had given the money from its sale to respondent. On cross-examination, however, Porter indicated that it was his memory of the preliminary testimony which was "mostly" refreshed, rather than his memory of the events themselves, and he was still unsure of the actual episode. See App. 25. Later in the trial, Officer Wade testified, relating Porter's earlier statement that respondent had personally delivered the marihuana. This statement was also admitted as substantive evidence. Porter admitted making the statement, App. 59, and insisted that he had been telling the truth as he then believed it both to Officer Wade and at the preliminary hearing; but he insisted that he was also telling the truth now in claiming inability to remember the actual events. Page 399 U. S. 153Respondent was convicted. The District Court of Appeal reversed, holding that the use of Porter's prior statements for the truth of the matter asserted therein denied respondent his right of confrontation under the California Supreme Court's recent decision in People v. Johnson, supra. The California Supreme Court affirmed, finding itself "impelled" by recent decisions of this Court to hold § 1235 unconstitutional insofar as it permitted the substantive use of prior inconsistent statements of a witness even though the statements were subject to cross-examination at a prior hearing. We granted the State's petition for certiorari, 396 U.S. 1001 (1970).IIThe California Supreme Court construed the Confrontation Clause of the Sixth Amendment to require the exclusion of Porter's prior testimony offered in evidence to prove the State's case against Green because, in the court's view, neither the right to cross-examine Porter at the trial concerning his current and prior testimony nor the opportunity to cross-examine Porter at the preliminary hearing satisfied the commands of the Confrontation Clause. We think the California court was wrong on both counts.Positing that this case posed an instance of a witness who gave trial testimony inconsistent with his prior, out-of-court statements, [Footnote 2] the California court, on the authority of its decision in People v. Johnson, supra, held that belated cross-examination before the trial court"is not an adequate substitute for the right to cross-examination contemporaneous with the original testimony before a different tribunal."People v. Green, supra, at 659, 451 P.2d at 425. We disagree. Page 399 U. S. 154Section 1235 of the California Evidence Code represents a considered choice by the California Legislature [Footnote 3] between two opposing positions concerning the extent to which a witness' prior statements may be introduced at trial without violating hearsay rules of evidence. The orthodox view, adopted in most jurisdictions, [Footnote 4] has been that the out-of-court statements are inadmissible for the usual reasons that have led to the exclusion of hearsay statements: the statement may not have been made under oath; the declarant may not have been subjected to cross-examination when he made the statement; and the jury cannot observe the declarant's demeanor at the time he made the statement. Accordingly, under this view, the statement may not be offered to show the truth of the matters asserted therein, but can be introduced under appropriate limiting instructions to impeach the credibility of the witness who has changed his story at trial. In contrast, the minority view, adopted in some jurisdictions [Footnote 5] and supported by most legal commentators and by recent proposals to codify the law of evidence, [Footnote 6] would Page 399 U. S. 155 permit the substantive use of prior inconsistent statements on the theory that the usual dangers of hearsay are largely nonexistent where the witness testifies at trial."The whole purpose of the Hearsay rule has been already satisfied, [because] the witness is present and subject to cross-examination [and] [t]here is ample opportunity to test him as to the basis for his former statement. [Footnote 7]"Our task in this case is not to decide which of these positions, purely as a matter of the law of evidence, is the sounder. The issue before us is the considerably narrower one of whether a defendant's constitutional right "to be confronted with the witnesses against him" is necessarily inconsistent with a State's decision to change its hearsay rules to reflect the minority view described above. While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete, and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of Page 399 U. S. 156 confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U. S. 719 (1968); Pointer v. Texas, 380 U. S. 400 (196). The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied. [Footnote 8]Given the similarity of the values protected, however, the modification of a State's hearsay rules to create new exceptions for the admission of evidence against a defendant will often raise questions of compatibility with the defendant's constitutional right to confrontation. Such questions require attention to the reasons for, and the basic scope of, the protections offered by the Confrontation Clause.The origin and development of the hearsay rules and of the Confrontation Clause have been traced by others, and need not be recounted in detail here. [Footnote 9] It is sufficient to note that the particular vice that gave impetus to the confrontation claim was the practice of trying defendants on "evidence" which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact. Prosecuting attorneys"would frequently allege matters which the prisoner denied and called upon them to prove. The Page 399 U. S. 157 proof was usually given by reading depositions, confessions of accomplices, letters, and the like, and this occasioned frequent demands by the prisoner to have his 'accusers,' i.e., the witnesses against him, brought before him face to face. . . . [Footnote 10]"But objections occasioned by this practice appear primarily to have been aimed at the failure to call the witness to confront personally the defendant at his trial. So far as appears, in claiming confrontation rights, no objection was made against receiving a witness' out-of-court depositions or statements so long as the witness was present at trial to repeat his story and to explain or repudiate any conflicting prior stories before the trier of fact.Our own decisions seem to have recognized at an early date that it is this literal right to "confront" the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause:"The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity Page 399 U. S. 158 not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief."Mattox v. United States, 156 U. S. 237, 156 U. S. 242-243 (1895). Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant's out-of-court statements as long as the declarant is testifying as a witness and subject to full and effective cross-examination.This conclusion is supported by comparing the purposes of confrontation with the alleged dangers in admitting an out-of-court statement. Confrontation: (1) insures that the witness will give his statements under oath -- thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever invented for the discovery of truth"; [Footnote 11] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.It is, of course, true that the out-of-court statement may have been made under circumstances subject to none of these protections. But if the declarant is present and testifying at trial, the out-of-court statement, for all practical purposes, regains most of the lost protections. If the witness admits the prior statement is his, or if there is other evidence to show the statement is his, the danger of faulty reproduction is negligible, and the jury can be confident that it has before it two conflicting statements by the same witness. Thus, as far as the Page 399 U. S. 159 oath is concerned, the witness must now affirm, deny, or qualify the truth of the prior statement under the penalty of perjury; indeed, the very fact that the prior statement was not given under a similar circumstance may become the witness' explanation for its inaccuracy -- an explanation a jury may be expected to understand and take into account in deciding which, if either, of the statements represents the truth.Second, the inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial. The most successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent story, and -- in this case -- one that is favorable to the defendant. We cannot share the California Supreme Court's view that belated cross-examination can never serve as a constitutionally adequate substitute for cross-examination contemporaneous with the original statement. The main danger in substituting subsequent for timely cross-examination seems to lie in the possibility that the witness'"[f]alse testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others, whose interest may be, and often is, to maintain falsehood, rather than truth."State v. Saporen, 205 Minn. 358, 362, 285 N.W. 898, 901 (1939). That danger, however, disappears when the witness has changed his testimony so that, far from "hardening," his prior statement has softened to the point where he now repudiates it. [Footnote 12] Page 399 U. S. 160The defendant's task in cross-examination is, of course, no longer identical to the task that he would have faced if the witness had not changed his story, and hence had to be examined as a "hostile" witness giving evidence for the prosecution. This difference, however, far from lessening, may actually enhance, the defendant's ability to attack the prior statement. For the witness, favorable to the defendant, should be more than willing to give the usual suggested explanations for the inaccuracy of his prior statement, such as faulty perception or undue haste in recounting the event. Under such circumstances, the defendant is not likely to be hampered in effectively attacking the prior statement solely because his attack comes later in time.Similar reasons lead us to discount as a constitutional matter the fact that the jury at trial is foreclosed from viewing the declarant's demeanor when he first made his out-of-court statement. The witness who now relates a different story about the events in question must necessarily assume a position as to the truth value of his prior statement, thus giving the jury a chance to observe and evaluate his demeanor as he either disavows or qualifies his earlier statement. The jury is alerted by the inconsistency in the stories, and its attention is sharply focused on determining either that one of the stories reflects the truth, or that the witness, who has apparently lied once, is simply too lacking in credibility to warrant its believing either story. The defendant's confrontation rights are not violated, even though some demeanor evidence that would have been relevant in resolving this credibility issue is forever lost.It may be true that a jury would be in a better position to evaluate the truth of the prior statement if it could somehow be whisked magically back in time to witness a gruelling cross-examination of the declarant as he first gives his statement. But the question, as we Page 399 U. S. 161 see it, must be not whether one can somehow imagine the jury in "a better position," but whether subsequent cross-examination at the defendant's trial will still afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. On that issue, neither evidence [Footnote 13] nor reason convinces us that contemporaneous cross-examination before the ultimate trier of fact is so much more effective than subsequent examination that it must be made the touchstone of the Confrontation Clause.Finally, we note that none of our decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial. The concern of most of our cases has been focused on precisely the opposite situation -- situations where statements have been admitted in the absence of the declarant and without any chance to cross-examine him at trial. These situations have arisen through application of a number of traditional "exceptions" to the hearsay rule, which permit the introduction of evidence despite the absence of the declarant usually on the theory that the evidence possesses other indicia of "reliability" and is incapable of being admitted, despite good faith efforts of the State, in any way that will secure Page 399 U. S. 162 confrontation with the declarant. [Footnote 14] Such exceptions, dispensing altogether with the literal right to "confrontation" and cross-examination, have been subjected on several occasions to careful scrutiny by this Court. In Pointer v. Texas, 380 U. S. 400 (1965), for example, the State introduced at defendant's trial the transcript of a crucial witness' testimony from a prior preliminary hearing. The witness himself, one Phillips, had left the jurisdiction, and did not appear at trial."Because the transcript of Phillips' statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips,"380 U.S. at 380 U. S. 407, we held that its introduction violated the defendant's confrontation rights. Similarly, in Barber v. Page, 390 U. S. 719 (1968), the State introduced the preliminary hearing testimony of an absent witness, incarcerated in a federal prison, under an "unavailability" exception to its hearsay rules. We held that that exception would not justify the denial of confrontation where the State had not made a good faith effort to obtain the presence of the allegedly "unavailable" witness.We have no occasion in the present case to map out a theory of the Confrontation Clause that would determine the validity of all such hearsay "exceptions" permitting the introduction of an absent declarant's statements. For where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem. Thus, in Douglas v. Alabama, 380 U. S. 415 (1965), decided on the same day as Pointer, we reversed a conviction in which the prosecution read Page 399 U. S. 163 into the record an alleged confession of the defendant's supposed accomplice, Loyd, who refused to testify on self-incrimination grounds. The confrontation problem arose precisely because Loyd could not be cross-examined as to his prior statement; had such cross-examination taken place, the opinion strongly suggests that the confrontation problem would have been nonexistent:"In the circumstances of this case, petitioner's inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. . . . Loyd could not be cross-examined on a statement imputed to, but not admitted by, him. . . . [S]ince [the State's] evidence tended to show only that Loyd made the confession, cross-examination . . . as to its genuineness could not substitute for cross-examination of Loyd to test the truth of the statement itself. . . .""Hence, effective confrontation of Loyd was possible only if Loyd affirmed the statement as his."380 U.S. at 380 U. S. 419-420.Again, in Bruton v. United States, 391 U. S. 123 (1968), the Court found a violation of confrontation rights in the admission of a codefendant's confession, implicating Bruton, where the codefendant did not take the stand. The Court again emphasized that the error arose because the declarant "does not testify, and cannot be tested by cross-examination," 391 U.S. at 391 U. S. 136, suggesting that no confrontation problem would have existed if Bruton had been able to cross-examine his codefendant. [Footnote 15] Cf. Page 399 U. S. 164 Harrington v. Californoa, 395 U. S. 250, 395 U. S. 252-253 (1969). Indeed, Bruton's refusal to regard limiting instructions as capable of curing the error, suggests that there is little difference as far as the Constitution is concerned between permitting prior inconsistent statements to be used only for impeachment purposes and permitting them to be used for substantive purposes as well.We find nothing, then, in either the history or the purposes of the Confrontation Clause, or in the prior decisions of this Court, that compels the conclusion reached by the California Supreme Court concerning the validity of California's § 1235. Contrary to the judgment of that court, the Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories. Page 399 U. S. 165IIIWe also think that Porter's preliminary hearing testimony was admissible as far as the Constitution is concerned wholly apart from the question of whether respondent had an effective opportunity for confrontation at the subsequent trial. For Porter's statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel -- the same counsel, in fact, who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement, and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter's statement would, we think, have been admissible at trial even in Porter's absence if Porter had been actually unavailable despite good faith efforts of the State to produce him. That being the case, we do not think a different result should follow where the witness is actually produced.This Court long ago held that admitting the prior testimony of an unavailable witness does not violate the Confrontation Clause. Mattox v. United States, 156 U. S. 237 (1895). That case involved testimony given at the defendant's first trial by a witness who had died by the time of the second trial, but we do not find the instant preliminary hearing significantly different from an actual trial to warrant distinguishing the two cases for purposes of the Confrontation Clause. Indeed, we indicated as much in Pointer v. Texas, 380 U. S. 400, 380 U. S. 407 (1965), where we noted that"[t]he case before us would be quite a different one had Phillips' statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a Page 399 U. S. 166 complete and adequate opportunity to cross-examine."And in Barber v. Page, 390 U. S. 719, 390 U. S. 725-726 (1968), although noting that the preliminary hearing is ordinarily a less searching exploration into the merits of a case than a trial, we recognized that"there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable. . . ."In the present case, respondent's counsel does not appear to have been significantly limited in any way in the scope or nature of his cross-examination of the witness Porter at the preliminary hearing. If Porter had died or was otherwise unavailable, the Confrontation Clause would not have been violated by admitting his testimony given at the preliminary hearing -- the right of cross-examination then afforded provides substantial compliance with the purposes behind the confrontation requirement, as long as the declarant's inability to give live testimony is in no way the fault of the State. Compare Barber v. Page, supra, with Motes v. United States, 178 U. S. 458 (1900).But nothing in Barber v. Page or in other cases in this Court indicates that a different result must follow where the State produces the declarant and swears him as a witness at the trial. It may be that the rules of evidence applicable in state or federal courts would restrict resort to prior sworn testimony where the declarant is present at the trial. But, as a constitutional matter, it is untenable to construe the Confrontation Clause to permit the use of prior testimony to prove the State's case where the declarant never appears, but to bar that testimony where the declarant is present at the trial, exposed to the defendant and the trier of fact, and subject Page 399 U. S. 167 to cross-examination. [Footnote 16] As in the case where the witness is physically unproducible, the State here has made every effort to introduce its evidence through the live testimony of the witness; it produced Porter at trial, swore him as a witness, and tendered him for cross-examination. Whether Porter then testified in a manner consistent or inconsistent with his preliminary hearing testimony, claimed a loss of memory, claimed his privilege Page 399 U. S. 168 against compulsory self-incrimination, or simply refused to answer, nothing in the Confrontation Clause prohibited the State from also relying on his prior testimony to prove its case against Green. [Footnote 17]IVThere is a narrow question lurking in this case concerning the admissibility of Porter's statements to Officer Wade. In the typical case to which the California court addressed itself, the witness at trial gives a version of the ultimate events different from that given on a prior occasion. In such a case, as our holding in 399 U. S. we find little reason to distinguish among prior inconsistent statements on the basis of the circumstances under which the prior statements were given. The subsequent opportunity for cross-examination at trial with respect to both present and past versions of the event is adequate to make equally admissible, as far as the Confrontation Clause is concerned, both the casual, off-hand remark to a stranger and the carefully recorded testimony at a prior hearing. Here, however, Porter claimed at trial that he could not remember the events that occurred after respondent telephoned him, and, hence, failed to give any current version of the more important events described in his earlier statement.Whether Porter's apparent lapse of memory so affected Green's right to cross-examine as to make a critical difference in the application of the Confrontation Clause Page 399 U. S. 169 in this case [Footnote 18] is an issue which is not ripe for decision at this juncture. The state court did not focus on this precise question, which was irrelevant given its broader and erroneous premise that an out-of-court statement of a witness is inadmissible as substantive evidence, whatever the nature of the opportunity to cross-examine at the trial. Nor has either party addressed itself to the question. Its resolution depends much upon the Page 399 U. S. 170 unique facts in this record, and we are reluctant to proceed without the state court's views of what the record actually discloses relevant to this particular issue. What is more, since we hold that the admission of Porter's preliminary hearing testimony is not barred by the Sixth Amendment despite his apparent lapse of memory, the reception into evidence of the Porter statement to Officer Wade may pose a harmless error question which is more appropriately resolved by the California courts in the first instance. Similarly, faced on remand with our decision that § 1235 is not invalid on its face, the California Supreme Court may choose to dispose of the case on other grounds raised by Green but not passed upon by that court; for example, because of its ruling on § 1235, the California court deliberately put aside the issue of the sufficiency of the evidence to sustain conviction. [Footnote 19]We therefore vacate the judgment of the California Supreme Court and remand the case to that court for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtCalifornia v. Green, 399 U.S. 149 (1970)California v. GreenNo. 387Argued April 20, 1970Decided June 23, 1970399 U.S. 149SyllabusRespondent was convicted of furnishing marihuana to a minor in violation of California law, chiefly on the basis of evidence consisting of prior inconsistent statements made by the minor (Porter) (1) at respondent's preliminary hearing and (2) to a police officer. These statements were admitted under California Evidence Code § 1235 to prove the truth of the matters asserted therein. The District Court of Appeal reversed. The California Supreme Court affirmed, and held § 1235 unconstitutional insofar as it permitted the substantive use of a witness' prior inconsistent Statements even though such statements were subject to cross-examination at a prior hearing.Held:1. The Confrontation Clause of the Sixth Amendment, as made applicable to the States by the Fourteenth Amendment, is not violated by admitting a declarant's out-of-court statements as long as he is testifying as a witness at trial and is subject to full cross-examination. The purposes of the Amendment are satisfied at the time of trial, even if not before, since the witness is under oath, is subject to cross-examination, and his demeanor can be observed by the trier of fact. Pp. 399 U. S. 153-164.2. Even in the absence of an opportunity for full cross-examination at trial, the admission into evidence of the preliminary hearing testimony would not violate the Constitution. For the preliminary hearing in this case (where Porter was under oath, and where respondent was represented by counsel and had full opportunity for cross-examination) was not significantly different from an actual trial as far as the purposes of the Confrontation Clause are concerned, and it has long been held that admitting the prior trial testimony of an unavailable witness does not violate that clause. A different result should not follow where, as in this case, the witness was actually produced. Pp. 399 U. S. 165-168.3. The question whether Porter's claimed lapse of memory at the trial about important events described in his earlier statement to the officer so affected respondent's right to cross-examine as Page 399 U. S. 150 to make a critical difference in the application of the Confrontation Clause is an issue that should first be resolved by the state court. Pp. 399 U. S. 168-170.70 Cal. 2d 654, 451 P.2d 422, vacated and remanded.

1971_70-5026

MR. JUSTICE WHITE delivered the opinion of the Court.After a jury trial in the District Court for the Fifteenth Judicial District of Lafayette Parish, Louisiana, petitioner, a Negro, was convicted of rape and sentenced to life imprisonment. His conviction was affirmed on appeal by the Louisiana Supreme Court, [Footnote 1] and this Court granted certiorari. [Footnote 2] Prior to trial, petitioner had moved to quash the indictment because (1) Negro citizens were included on the grand jury list and venire in only token numbers, and (2) female citizens were systematically excluded from the grand jury list, venire, and impaneled grand jury. [Footnote 3] Petitioner therefore argued that the indictment against him was invalid because it was returned by a grand jury impaneled from a venire made up contrary Page 405 U. S. 627 to the requirements of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Petitioner's motions were denied.According to 1960 U.S. census figures admitted into evidence below, Lafayette Parish contained 44,986 persons over 21 years of age and therefore presumptively eligible for grand jury service; [Footnote 4] of this total, 9,473 persons (21.06%) were Negro. [Footnote 5] At the hearing on petitioner's motions to quash the indictment, the evidence revealed that the Lafayette Parish jury commission consisted of five members, all of whom were white, who had been appointed by the court. The commission compiled a list of names from various sources (telephone directory, city directory, voter registration rolls, lists prepared by the school board, and by the jury commissioners themselves) and sent questionnaires to the persons on this list to determine those qualified for grand jury service. The questionnaire included a space to indicate the race of the recipient. Through this process, 7,374 questionnaires were returned, 1,015 of which (13.765) were from Negroes, [Footnote 6] and the jury commissioners attached to each Page 405 U. S. 628 questionnaire an information card designating, among other things, the race of the person, and a white slip indicating simply the name and address of the person. The commissioners then culled out about 5,000 questionnaires, ostensibly on the ground that these persons were not qualified for grand jury service or were exempted under state law. The remaining 2,000 sets of papers were placed on a table, and the papers of 400 persons were selected, purportedly at random, and placed in a box from which the grand jury panels of 20 for Lafayette Parish were drawn. Twenty-seven of the persons thus selected were Negro (6.75%). [Footnote 7] On petitioner' grand jury venire, one of the 20 persons drawn was Negro (5%), but none of the 12 persons on the grand jury that indicted him, drawn from this 20, was Negro.IFor over 90 years, it has been established that a criminal conviction of a Negro cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which Negroes were excluded by reason of their race. Strauder v. West Virginia, 100 U. S. 303 (1880); Neal v. Delaware, 103 U. S. 370 (1881). Although a defendant has no right to demand that members of his race be included on the grand jury that indicts him, Virginia v. Rives, 100 U. S. 313 (1880), he is entitled to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration Page 405 U. S. 629 of justice. [Footnote 8] Ex parte Virginia, 100 U. S. 339 (1880); Gibson v. Mississippi, 162 U. S. 565 (1896). Cf. Hernandez v. Texas, 347 U. S. 475 (1954). It is only the application of these settled principles that is at issue here.This is not a case where it is claimed that there have been no Negroes called for service within the last 30 years, Patton v. Mississippi, 332 U. S. 463, 332 U. S. 464 (1947); only one Negro chosen within the last 40 years, Pierre v. Louisiana, 306 U. S. 354, 306 U. S. 359 (1939); or no Negroes selected "within the memory of witnesses who had lived [in the area] all their lives," Norris v. Alabama, 294 U. S. 587, 294 U. S. 591 (1935). Rather, petitioner argues that, in his case, there has been a consistent process of progressive and disproportionate reduction of the number of Negroes eligible to serve on the grand jury at each stage of the selection process until ultimately an all-white grand jury was selected to indict him.In Lafayette Parish, 21% of the population was Negro and 21 or over, therefore presumptively eligible for grand jury service. Use of questionnaires by the jury commissioners created a pool of possible grand jurors which was 14% Negro, a reduction by one-third of possible black grand jurors. The commissioners then twice culled this group to create a list of 400 prospective jurors, 7% of whom were Negro -- a further reduction by one-half. Page 405 U. S. 630 The percentage dropped to 5% on petitioner's grand jury venire, and to zero on the grand jury that actually indicted him. Against this background, petitioner argues that the substantial disparity between the proportion of blacks chosen for jury duty and the proportion of blacks in the eligible population raises a strong inference that racial discrimination, and not chance, has produced this result, because elementary principles of probability make it extremely unlikely that a random selection process would, at each stage, have so consistently reduced the number of Negroes. [Footnote 9]This Court has never announced mathematical standards for the demonstration of "systematic" exclusion of blacks, but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination. At two crucial steps in the selection process, when the number of returned questionnaires was reduced to 2,000 and when the final selection of the 400 names was made, these racial identifications were visible on the forms used by the jury commissioners, although there is no evidence that the commissioners consciously selected by race. The situation Page 405 U. S. 631 here is thus similar to Avery v. Georgia, 345 U. S. 559 (1953), where the Court sustained a challenge to an array of petit jurors in which the names of prospective jurors had been selected from segregated tax lists. Juror cards were prepared from these lists, yellow cards being used for Negro citizens and white cards for whites. Cards were drawn by a judge, and there was no evidence of specific discrimination. The Court held that such evidence was unnecessary, however, given the fact that no Negroes had appeared on the final jury: "Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate." 345 U.S. at 345 U. S. 562. Again, in Whitus v. Georgia, 385 U. S. 545 (1967), the Court reversed the conviction of a defendant who had been tried before an all-white petit jury. Jurors had been selected from a one-volume tax digest divided into separate sections of Negroes and whites; black taxpayers also had a "(c)" after their names, as required by Georgia law at the time. The jury commissioners testified that they were not aware of the "(c)" appearing after the names of the Negro taxpayers; that they had never included or excluded anyone because of race; that they had placed on the jury list only those persons whom they knew personally; and that the jury list they compiled had had no designation of race on it. The county from which jury selection was made was 42% Negro, and 27% of the county's taxpayers were Negro. Of the 33 persons drawn for the grand jury panel, three (9%) were Negro, while, on the 19-member grand jury, only one was Negro; on the 90-man venire from which the petit jury was selected, there were seven Negroes (8%), but no Negroes appeared on the actual jury that tried petitioner. The Court held that this combination of factors constituted a prima facie case of discrimination, and a similar conclusion is mandated in the present case.Once a prima facie case of invidious discrimination is Page 405 U. S. 632 established, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result. Turner v. Fouche, 396 U. S. 346, 396 U. S. 361 (1970); Eubanks v. Louisiana, 356 U. S. 584, 356 U. S. 587 (1958). The State has not carried this burden in this case; it has not adequately explained the elimination of Negroes during the process of selecting the grand jury that indicted petitioner. As in Whitus v. Georgia, supra, the clerk of the court, who was also a member of the jury commission, testified that no consideration was given to race during the selection procedure. App. 34. The Court has squarely held, however, that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion. Turner v. Fouche, supra, at 396 U. S. 361; Jones v. Georgia, 389 U. S. 24, 389 U. S. 25 (1967); Sims v. Georgia, 389 U. S. 404, 389 U. S. 407 (1967). "The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner." Hernandez v. Texas, 347 U.S. at 347 U. S. 482. See also Norris v. Alabama, 294 U.S. at 294 U. S. 598. The clerk's testimony that the mailing list for questionnaires was compiled from nonracial sources is not, in itself, adequate to meet the State's burden of proof, for the opportunity to discriminate was presented at later stages in the process. The commissioners, in any event, had a duty"not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds."Hill v. Texas, 316 U. S. 400, 316 U. S. 404 (1942). See also Smith v. Texas, 311 U. S. 128, 311 U. S. 130 (1940). Cf. Carter v. Jury Commission, 396 U. S. 320, 396 U. S. 330 (1970). We conclude, therefore, that "the opportunity for discrimination was present, and [that it cannot be said] on this record that it was not resorted to by the commissioners." Whitus v. Georgia, supra, at 385 U. S. 552. Page 405 U. S. 633IIPetitioner also challenges the Louisiana statutory exemption of women who do not volunteer for grand jury service. Article 402, La.Code Crim.Proc. This claim is novel in this Court, and, when urged by a male, finds no support in our past cases. The strong constitutional and statutory policy against racial discrimination has permitted Negro defendants in criminal cases to challenge the systematic exclusion of Negroes from the grand juries that indicted them. Also, those groups arbitrarily excluded from grand or petit jury service are themselves afforded an appropriate remedy. Cf. Carter v. Jury Commission, supra. But there is nothing in past adjudications suggesting that petitioner himself has been denied equal protection by the alleged exclusion of women from grand jury service. Although the Due Process Clause guarantees petitioner a fair trial, it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury. In Duncan v. Louisiana, 391 U. S. 145 (1968), the Court held that, because trial by jury in criminal cases under the Sixth Amendment is "fundamental to the American scheme of justice," id. at 391 U. S. 149, such a right was guaranteed to defendants in state courts by the Fourteenth Amendment, but the Court has never held that federal concepts of a "grand jury," binding on the federal courts under the Fifth Amendment, are obligatory for the States. Hurtado v. California, 110 U. S. 516, 110 U. S. 538 (1884).Against this background, and because petitioner's conviction has been set aside on other grounds, we follow our usual custom of avoiding decision of constitutional issues unnecessary to the decision of the case before us. Burton v. United States, 196 U. S. 283, 196 U. S. 295 (1905). See Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 297 U. S. 346-348 (1936) (Brandeis, J., concurring). The Page 405 U. S. 634 State may or may not recharge petitioner, a properly constituted grand jury may or may not return another indictment, and petitioner may or may not be convicted again. See Ballard v. United States, 329 U. S. 187, 329 U. S. 196 (1946).Reversed

U.S. Supreme CourtAlexander v. Louisiana, 405 U.S. 625 (1972)Alexander v. LouisianaNo. 70-5026Argued December 6-7, 1971Decided April 3, 1972405 U.S. 625SyllabusPetitioner, a Negro, attacks his rape conviction in Lafayette Parish, which was affirmed by the Louisiana Supreme Court, contending that the grand jury selection procedures followed in his case were invidiously discriminatory against Negroes and, because of a statutory exemption provision, against women. The jury commissioners (all white) sent out questionnaires (including a space for racial designation) to those on a list compiled from nonracial sources. Of the 7,000-odd returns, 1,015 (14%) were from Negroes, though Negroes constituted 21% of the parish population presumptively eligible for grand jury service. By means of two culling-out procedures, when racial identifications that the commissioners had attached to the forms were plainly visible, the pool was reduced to 400, of whom 27 (7%) were Negro, from which group the 20-man grand jury venires were drawn. Petitioner's venire included one Negro (5%), and the grand jury that indicted him had none. There was no evidence of conscious racial selection, and one commissioner testified that race was no consideration.Held:1. Petitioner made out a prima facie case of invidious racial discrimination in the selection of the grand jury that indicted him -- not only on a statistical basis but by a showing that the selection procedures were not racially neutral -- and the State, which did not adequately explain the disproportionately low number of Negroes throughout the selection process, did not meet the burden of rebutting the presumption of unconstitutionality in the procedures used. Cf. Avery v. Georgia, 345 U. S. 559; Whitus v. Georgia, 385 U. S. 545. Pp. 405 U. S. 628-632.2. Petitioner's contentions regarding discrimination against women in the selection of grand jurors are not reached. Pp. 405 U. S. 633-634.255 La. 941, 233 So. 2d 891, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, MARSHALL, and BLACKMUN, JJ, joined, and in Part I of which DOUGLAS, J., joined. DOUGLAS, J., filed a concurring opinion, post, p. 405 U. S. 634. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case. Page 405 U. S. 626

1980_80-251

JUSTICE REHNQUIST delivered the opinion of the Court.The question presented is whether the Military Selective Service Act, 50 U.S.C.App. § 451 et seq. (1976 ed. and Supp. III), violates the Fifth Amendment to the United States Constitution in authorizing the President to require the registration of males, and not females.ICongress is given the power under the Constitution "To raise and support Armies," "To provide and maintain a Navy," and "To make Rules for the Government and Regulation of the land and naval Forces." Art. I, § 8, cls. 12-14. Pursuant to this grant of authority, Congress has enacted the Military Selective Service Act, 50 U.S.C.App. § 451 et seq. (1976 ed. and Supp. III) (the MSSA or the Act). Section 3 of the Act, 62 Stat. 605, as amended, 50 U.S.C.App. § 453, empowers the President, by proclamation, to require the registration of "every male citizen" and male resident aliens between the ages of 18 and 26. The purpose of this registration is to facilitate any eventual conscription: pursuant to § 4 (a) of the Act, 62 Stat. 605, as amended, 50 U.S.C.App. § 454 (a), those persons required to register under § 3 are liable for Page 453 U. S. 60 training and service in the Armed Forces. The MSSA registration provision serves no other purpose beyond providing a pool for subsequent induction.Registration for the draft under § 3 was discontinued in 1975. Presidential Proclamation No. 4360, 3 CFR 462 (1971-1975 Comp.), note following 50 U.S.C.App. § 453. In early 1980, President Carter determined that it was necessary to reactivate the draft registration process. [Footnote 1] The immediate impetus for this decision was the Soviet armed invasion of Afghanistan. 16 Weekly Comp. of Pres.Doc. 198 (1980) (State of the Union Address). According to the administration's witnesses before the Senate Armed Services Committee, the resulting crisis in Southwestern Asia convinced the President that the "time has come" "to use his present authority to require registration . . . as a necessary step to preserving or enhancing our national security interests." Department of Defense Authorization for Appropriations for Fiscal Year 1981: Hearings on S. 2294 before the Senate Committee on Armed Services, 96th Cong., 2d Sess., 1805 (1980) (hereafter Hearings on S. 2294) (joint statement of Dr. John P. White, Deputy Director, Office of Management and Budget, Dr. Bernard Rostker, Director, Selective Service System, and Richard Danzig, Principal Deputy Assistant Secretary of Defense). The Selective Service System had been inactive, however, and funds were needed before reactivating registration. The President therefore recommended that funds be transferred from the Department of Defense to the separate Selective Service System. H.R.Doc. No. 96-267, p. 2 (1980). He also recommended that Congress take action to amend the MSSA to permit the registration and conscription of women as well as men. See House Committee on Armed Services, Presidential Recommendations Page 453 U. S. 61 for Selective Service Reform -- A Report to Congress Prepared Pursuant to Pub.L. 96-107, 96th Cong., 2d Sess., 223 (Comm.Print No.19, 1980) (hereinafter Presidential Recommendations), App, 57-61.Congress agreed that it was necessary to reactivate the registration process, and allocated funds for that purpose in a Joint Resolution which passed the House on April 22 and the Senate on June 12. H.J.Res. 521, Pub.L. 9282, 94 Stat. 552. The Resolution did not allocate all the funds originally requested by the President, but only those necessary to register males. See S.Rep. No. 96-789, p. 1, n. 1, and p. 2 (1980); 126 Cong.Rec. 13895 (1980) (Sen. Nunn). Although Congress considered the question at great length, see infra at 453 U. S. 72-74, it declined to amend the MSSA to permit the registration of women.On July 2, 1980, the President, by Proclamation, ordered the registration of specified groups of young men pursuant to the authority conferred by § 3 of the Act. Registration was to commence on July 21, 1980. Proclamation No. 4771, 3 CFR 82 (1980).These events of last year breathed new life into a lawsuit which had been essentially dormant in the lower courts for nearly a decade. It began in 1971, when several men subject to registration for the draft and subsequent induction into the Armed Services filed a complaint in the United States District Court for the Eastern District of Pennsylvania challenging the MSSA on several grounds. [Footnote 2] A three-judge District Page 453 U. S. 62 Court was convened in 1974 to consider the claim of unlawful gender-based discrimination which is now before us. [Footnote 3] On July 1, 1974, the court declined to dismiss the case as moot, reasoning that, although authority to induct registrants had lapsed, see n 1 supra, plaintiffs were still under certain affirmative obligations in connection with registration. Rowland v. Tarr, 378 F. Supp. 766. Nothing more happened in the case for five years. Then, on June 6, 1979, the court Clerk, acting pursuant to a local rule governing inactive cases, proposed that the case be dismissed. Additional discovery thereupon ensued, and defendants moved to dismiss on various justiciability grounds. The court denied the motion to dismiss, ruling that it did not have before it an adequate record on the operation of the Selective Service System and what action would be necessary to reactivate it. Goldberg v. Tarr, 510 F. Supp. 292 (1980). On July 1, 1980, the court certified a plaintiff class of"all male persons who are registered or subject to registration under 50 U.S.C.App. § 453 or are liable for training and service in the armed forces of the United States under 50 U.S.C.App. §§ 454, 456 (h) and 467 (c)."509 F. Supp. 586, 589. [Footnote 4] Page 453 U. S. 63On Friday, July 18, 1980, three days before registration was to commence, the District Court issued an opinion finding that the Act violated the Due Process Clause of the Fifth Amendment and permanently enjoined the Government from requiring registration under the Act. The court initially determined that the plaintiffs had standing and that the case was ripe, determinations which are not challenged here by the Government. Turning to the merits, the court rejected plaintiffs' suggestions that the equal protection claim should be tested under "strict scrutiny," and also rejected defendants' argument that the deference due Congress in the area of military affairs required application of the traditional "minimum scrutiny" test. Applying the "important government interest" test articulated in Craig v. Boren, 429 U. S. 190 (1976), the court struck down the MSSA. The court stressed that it was not deciding whether or to what extent women should serve in combat, but only the issue of registration, and felt that this "should dispel any concern that we are injecting ourselves in an inappropriate manner into military affairs." 509 F. Supp. at 597. See also id. at 599, nn. 17 and 18. The court then proceeded to examine the testimony and hearing evidence presented to Congress by representatives of the military and the Executive Branch, and concluded on the basis of this testimony that"military opinion, backed by extensive study, is that the availability of women registrants would materially increase flexibility, not hamper it."Id. at 603. It rejected Congress' contrary determination in part because of what it viewed as Congress' "inconsistent positions" in declining to register women yet spending funds to recruit them and expand their opportunities in the military. Ibid. Page 453 U. S. 64The Director of Selective Service immediately filed a notice of appeal, and the next day, Saturday, July 19, 1980, JUSTICE BRENNAN, acting in his capacity as Circuit Justice for the Third Circuit, stayed the District Court's order enjoining commencement of registration. 448 U. S. 448 U.S. 1306. Registration began the next Monday. On December 1, 1980, we noted probable jurisdiction. 449 U.S. 1009.IIWhenever called upon to judge the constitutionality of an Act of Congress -- "the gravest and most delicate duty that this Court is called upon to perform," Blodett v. Holden, 275 U. S. 142, 275 U. S. 148 (1927) (Holmes, J.) -- the Court accords "great weight to the decisions of Congress." Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 102 (1973). The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States. As Justice Frankfurter noted in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 341 U. S. 164 (1951) (concurring opinion), we must have"due regard to the fact that this Court is not exercising a primary judgment, but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government."The customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Act's constitutionality. See, e.g, S.Rep. No. 96-826, pp. 159-161 (1980); 126 Cong.Rec. 13880-13882 (1980) (Sen. Warner); id. at 13896 (Sen. Hatfield).This is not, however, merely a case involving the customary deference accorded congressional decisions. The case arises in the context of Congress' authority over national defense and military affairs, and perhaps in no other area has Page 453 U. S. 65 the Court accorded Congress greater deference. In rejecting the registration of women, Congress explicitly relied upon its constitutional powers under Art. I, § 8, cls. 12-14. The "specific findings" section of the Report of the Senate Armed Services Committee, later adopted by both Houses of Congress, began by stating:"Article I, section 8 of the Constitution commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for Government and regulation of the land and naval forces, and pursuant to these powers it lies within the discretion of the Congress to determine the occasions for expansion of our Armed Forces, and the means best suited to such expansion, should it prove necessary."S.Rep. No. 96-826, supra, at 160. See also S.Rep. No. 96-226, p. 8 (1979). This Court has consistently recognized Congress' "broad constitutional power" to raise and regulate armies and navies, Schlesinger v. Ballard, 419 U. S. 498, 419 U. S. 510 (1975). As the Court noted in considering a challenge to the selective service laws:"The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping."United States v. O'Brien, 391 U. S. 367, 391 U. S. 377 (1968). See Lichter v. United States, 334 U. S. 742, 334 U. S. 755 (1948).Not only is the scope of Congress' constitutional power in this area broad, but the lack of competence on the part of the courts is marked. In Gilligan v. Morgan, 413 U. S. 1, 413 U. S. 10 (1973), the Court noted:"[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, Page 453 U. S. 66 subject always to civilian control of the Legislative and Executive Branches."See also Orloff v. Willoughby, 345 U. S. 83, 345 U. S. 93-94 (1953). [Footnote 5]The operation of a healthy deference to legislative and executive judgments in the area of military affairs is evident in several recent decisions of this Court. In Parker v. Levy, 417 U. S. 733, 417 U. S. 756, 417 U. S. 758 (1974), the Court rejected both vagueness and overbreadth challenges to provisions of the Uniform Code of Military Justice, noting that "Congress is permitted to legislate both with greater breadth and with greater flexibility" when the statute governs military society, and that"[w]hile the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections."In Middendorf v. Henry, 425 U. S. 25 (1976), the Court noted that, in considering due process claims in the context of a summary court-martial it"must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S.Const., Art. I § 8,"concerning what rights were available. Id. at 425 U. S. 43. See also id. at 425 U. S. 49-50 (POWELL, J., concurring). Deference to the judgment of other branches in the area of military affairs also played a major role in Greer v. Spock, 424 U. S. 828, 424 U. S. 837-838 (1976), where the Court upheld a ban on political speeches by civilians on a military base, and Brown v. Glines, 444 U. S. 348 (1980), where the Court upheld regulations imposing a prior restraint on the right to petition of military personnel. Page 453 U. S. 67 See also Burns v. Wilson, 346 U. S. 137 (1953); United States v. MacIntosh, 283 U. S. 605, 283 U. S. 622 (1931).In Schlesinger v. Ballard, supra, the Court considered a due process challenge, brought by males, to the Navy policy of according females a longer period than males in which to attain promotions necessary to continued service. The Court distinguished previous gender-based discriminations held unlawful in Reed v. Reed, 404 U. S. 71 (1971), and Frontiero v. Richardson, 411 U. S. 677 (1973). In those cases, the classifications were based on "overbroad generalizations." See 419 U.S. at 419 U. S. 506-507. In the case before it, however, the Court noted:"[T]he different treatment of men and women naval officers . . . reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service. Appellee has not challenged the current restrictions on women officers' participation in combat and in most sea duty."Id. at 419 U. S. 508. In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them.None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause See Ex parte Milligan, 4 Wall. 2 (1866); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, 251 U. S. 156 (1919), but the tests and limitations to be applied may differ because of the military context. We, of course, do not abdicate our ultimate responsibility to decide the constitutional question, but simply recognize that the Constitution itself requires such deference to congressional choice. See Columbia Broadcasting System, Page 453 U. S. 68 Inc. v. Democratic National Committee, 412 U.S. at 412 U. S. 103. In deciding the question before us, we must be particularly careful not to substitute our judgment of what is desirable for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the Legislative Branch.The District Court purported to recognize the appropriateness of deference to Congress when that body was exercising its constitutionally delegated authority over military affairs, 509 F. Supp. at 596, but it stressed that "[w]e are not here concerned with military operations or day-to-day conduct of the military, into which we have no desire to intrude." Ibid. Appellees also stress that this case involves civilians, not the military, and that "the impact of registration on the military is only indirect and attenuated." Brief for Appellees 19 (emphasis omitted). We find these efforts to divorce registration from the military and national defense context, with all the deference called for in that context, singularly unpersuasive. United States v. O'Brien, 391 U. S. 367 (1968), recognized the broad deference due Congress in the selective service area before us in this case. Registration is not an end in itself in the civilian world, but rather the first step in the induction process into the military one, and Congress specifically linked its consideration of registration to induction, see, e.g., S.Rep. No. 96-826, pp. 156, 160 (1980). Congressional judgments concerning registration and the draft are based on judgments concerning military operations and needs, see, e.g., id. at 157 ("the starting point for any discussion of the appropriateness of registering women for the draft is the question of the proper role of women in combat"), and the deference unquestionably due the latter judgments is necessarily required in assessing the former as well. Although the District Court stressed that it was not intruding on military questions, its opinion was based on assessments of military need and flexibility in a time of mobilization. See, e.g., 509 F. Supp. at 600-605. It would be blinking reality to say that Page 453 U. S. 69 our precedents requiring deference to Congress in military affairs are not implicated by the present case. [Footnote 6]The Solicitor General argues, largely on the basis of the foregoing cases emphasizing the deference due Congress in the area of military affairs and national security, that this Court should scrutinize the MSSA only to determine if the distinction drawn between men and women bears a rational relation to some legitimate Government purpose, see United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166 (1980), and should not examine the Act under the heightened scrutiny with which we have approached gender-based discrimination, see Michael M. v. Superior Court of Sonoma County, 450 U. S. 464 (1981); Craig v. Boren, 429 U. S. 190 (1976); Reed v. Reed, supra. [Footnote 7] We do not think that the substantive guarantee of due process or certainty in the law will be advanced by any further "refinement" in the applicable tests as suggested by the Government. Announced degrees of "deference" to legislative judgments, just as levels of "scrutiny" Page 453 U. S. 70 which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result. In this case, the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision "military" on the one hand, or "gender-based," on the other, does not automatically guide a court to the correct constitutional result.No one could deny that, under the test of Craig v. Boren, supra, the Government's interest in raising and supporting armies is an "important governmental interest." Congress and its Committees carefully considered and debated two alternative means of furthering that interest: the first was to register only males for potential conscription, and the other was to register both sexes. Congress chose the former alternative. When that decision is challenged on equal protection grounds, the question a court must decide is not which alternative it would have chosen, had it been the primary decisionmaker, but whether that chosen by Congress denies equal protection of the laws.Nor can it be denied that the imposing number of cases from this Court previously cited suggest that judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. As previously noted, supra, at 453 U. S. 67, deference does not mean abdication. The reconciliation between the deference due Congress and our own constitutional responsibility is perhaps best instanced in Schlesinger v. Ballard, 419 U.S. at 419 U. S. 510, where we stated:"This Court has recognized that 'it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.' [ 350 U. S. S. ex rel.] Toth Page 453 U. S. 71 v. Quarles, 350 U. S. 11, 350 U. S. 17. See also Orloff v. Willoughby, 345 U. S. 83, 345 U. S. 94. The responsibility for determining how best our Armed Forces shall attend to that business rests with Congress, see U.S.Const., Art. I § 8, cls. 12-14, and with the President. See U.S.Const., Art. II, § 2, cl. 1. We cannot say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment."Or, as put a generation ago in a case not involving any claim of gender-based discrimination:"[J]udges are not given the task of running the Army. The responsibility for setting up channels through which . . . grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters."Orloff v. Willoughby, 345 U.S. at 345 U. S. 93-94.Schlesinger v. Ballard did not purport to apply a different equal protection test because of the military context, but did stress the deference due congressional choices among alternatives in exercising the congressional authority to raise and support armies and make rules for their governance. In light of the floor debate and the Report of the Senate Armed Services Committee hereinafter discussed, it is apparent that Congress was fully aware not merely of the many facts and figures presented to it by witnesses who testified before its Committees, but of the current thinking as to the place of women in the Armed Services. In such a case, we cannot ignore Congress' broad authority conferred by the Constitution to raise and support armies when we are urged to declare Page 453 U. S. 72 unconstitutional its studied choice of one alternative in preference to another for furthering that goal.IIIThis case is quite different from several of the gender-based discrimination cases we have considered in that, despite appellees' assertions, Congress did not act "unthinkingly" or "reflexively and not for any considered reason." Brief for Appellees 35. The question of registering women for the draft not only received considerable national attention and was the subject of wide-ranging public debate, but also was extensively considered by Congress in hearings, floor debate, and in committee. Hearings held by both Houses of Congress in response to the President's request for authorization to register women adduced extensive testimony and evidence concerning the issue. See Hearings on S. 2294; Hearings on H.R. 6569, Registration of Women, before the Subcommittee on Military Personnel of the House Committee on Armed Services, 96th Cong., 2d Sess. (1980) (hereafter House Hearings). These hearings built on other hearings held the previous year addressed to the same question. [Footnote 8]The House declined to provide for the registration of women when it passed the Joint Resolution allocating funds for the Selective Service System. See 126 Cong.Rec. 8601-8602, 8620 (1980). When the Senate considered the Joint Resolution, it defeated, after extensive debate, an amendment which, in effect, would have authorized the registration of women. Id. at 13876-13898. [Footnote 9] As noted earlier, Congress in Page 453 U. S. 73 H.J.Res. 521 only authorized funds sufficient to cover the registration of males. The Report of the Senate Committee on Appropriations on H.J.Res. 521 noted that the amount authorized was below the President's request "due to the Committee's decision not to provide $8,500,000 to register women," and that "[t]he amount recommended by the Committee would allow for registration of young men only." S.Rep. No. 9789, p. 2 (1980); see 126 Cong.Rec. 13895 (1980) (Sen. Nunn).While proposals to register women were being rejected in the course of transferring funds to register males, Committees in both Houses which had conducted hearings on the issue were also rejecting the registration of women. The House Subcommittee on Military Personnel of the House Armed Services Committee tabled a bill which would have amended the MSSA to authorize registration of women, H.R. 6569, on March 6, 1980. Legislative Calendar, House Committee on Armed Services, 96th Cong., 2d Sess., 58 (1979-1980). The Senate Armed Services Committee rejected a proposal to register women, S. 2440, as it had one year before, see S.Rep. No. 9226, pp. 8-9 (1979), and adopted specific findings supporting its action. See S.Rep. No. 9826, pp. 156-161 (1980). These findings were stressed in debate in the Senate on Joint Resolution 521, see 126 Cong.Rec. 13893-13894 (1980) (Sen. Nunn); id. at 13880-13881 (Sen. Warner). They were later specifically endorsed by House and Senate conferees considering the Fiscal Year 1981 Defense Authorization Bill. See S.Conf.Rep. No. 9895, p. 100 (1980) [Footnote 10] Page 453 U. S. 74 Later, both Houses adopted the findings by passing the Report. 126 Cong.Rec. 23126, 23261 (1980). The Senate Report, therefore, is considerably more significant than a typical report of a single House, and its findings are, in effect, findings of the entire Congress.The foregoing clearly establishes that the decision to exempt women from registration was not the "accidental byproduct of a traditional way of thinking about females." Califano v. Webster, 430 U. S. 313, 430 U. S. 320 (1977) (quoting Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 223 (1977) (STEVENS, J., concurring in judgment)). In Michael M., 450 U.S. at 450 U. S. 471, n. 6 (plurality opinion), we rejected a similar argument because of action by the California Legislature considering and rejecting proposals to make a statute challenged on discrimination grounds gender-neutral. The cause for rejecting the argument is considerably stronger here. The issue was considered at great length, and Congress clearly expressed its purpose and intent. Contrast Califano v. Westcott, 443 U. S. 76, 443 U. S. 87 (1979) ("The gender qualification . . . escaped virtually unnoticed in the hearings and floor debates"). [Footnote 11]For the same reasons, we reject appellees' argument that we must consider the constitutionality of the MSSA solely on the basis of the views expressed by Congress in 1948, when the MSSA was first enacted in its modern form. Contrary to the suggestions of appellees and various amici, reliance on the legislative history of Joint Resolution 521 and the activity of the various Committees of the 96th Congress considering the registration of women does not violate sound principles that appropriations legislation should not be considered Page 453 U. S. 75 as modifying substantive legislation. Congress did not change the MSSA in 1980, but it did thoroughly reconsider the question of exempting women from its provisions, and its basis for doing so. The 1980 legislative history is, therefore, highly relevant in assessing the constitutional validity of the exemption.The MSSA established a plan for maintaining "adequate armed strength . . . to insure the security of [the] Nation." 50 U.S.C.App. § 451(b). Registration is the first step "in a united and continuous process designed to raise an army speedily and efficiently," Falbo v. United States, 320 U. S. 549, 320 U. S. 553 (1944), see United States v. Nugent, 346 U. S. 1, 346 U. S. 9 (1953), and Congress provided for the reactivation of registration in order to "provid[e] the means for the early delivery of inductees in an emergency." S.Rep. No. 9826, supra, at 156. Although the three-judge District Court often tried to sever its consideration of registration from the particulars of induction, see, e.g., 509 F. Supp. at 604-605, Congress rather clearly linked the need for renewed registration with its views on the character of a subsequent draft. The Senate Report specifically found that"[a]n ability to mobilize rapidly is essential to the preservation of our national security. . . . A functioning registration system is a vital part of any mobilization plan."S.Rep. No. 9826, supra, at 160. As Senator Warner put it, "I equate registration with the draft." Hearings on S. 2294, at 1197. See also id. at 1195 (Sen. Jepsen), 1671 (Sen. Exon). Such an approach is certainly logical, since under the MSSA induction is interlocked with registration: only those registered may be drafted, and registration serves no purpose beyond providing a pool for the draft. Any assessment of the congressional purpose and its chosen means must therefore consider the registration scheme as a prelude to a draft in a time of national emergency. Any other approach would not be testing the Act in light of the purposes Congress sought to achieve. Page 453 U. S. 76Congress determined that any future draft, which would be facilitated by the registration scheme, would be characterized by a need for combat troops. The Senate Report explained, in a specific finding later adopted by both Houses, that, "[i]f mobilization were to be ordered in a wartime scenario, the primary manpower need would be for combat replacements." S.Rep. No. 96-826, p. 160 (1980); see id. at 158. This conclusion echoed one made a year before by the same Senate Committee, see S.Rep. No. 96 226, pp. 2, 6 (1979). As Senator Jepsen put it, "the shortage would be in the combat arms. That is why you have drafts." Hearings on S. 2294, at 1688. See also id. at 1195 (Sen. Jepsen); 126 Cong.Rec. 8623 (1980) (Rep. Nelson). Congress' determination that the need would be for combat troops if a draft took place was sufficiently supported by testimony adduced at the hearings so that the courts are not free to make their own judgment on the question. See Hearings on S. 2294, at 1528-1529 (Marine Corps Lt. Gen. Bronars); 1395 (Principal Deputy Assistant Secretary of Army Clark); 1391 (Lt. Gen. Yerks); 748 (Gen. Meyer); House Hearings 17 (Assistant Secretary of Defense for Manpower Pirie). See also Hearing on S. 109 and S. 226, at 24, 54 (Gen. Rogers). The purpose of registration, therefore, was to prepare for a draft of combat troops.Women as a group, however, unlike men as a group, are not eligible for combat. The restrictions on the participation of women in combat in the Navy and Air Force are statutory. Under 10 U.S.C. § 6015 (1976 ed., Supp. III), "women may not be assigned to duty on vessels or in aircraft that are engaged in combat missions," and under 10 U.S.C. § 8549, female members of the Air Force "may not be assigned to duty in aircraft engaged in combat missions." The Army and Marine Corps preclude the use of women in combat as a matter of established policy. See App. 86, 34, 58. Congress specifically recognized and endorsed the exclusion of women from Page 453 U. S. 77 combat in exempting women from registration. In the words of the Senate Report:"The principle that women should not intentionally and routinely engage in combat is fundamental, and enjoys wide support among our people. It is universally supported by military leaders who have testified before the Committee. . . . Current law and policy exclude women from being assigned to combat in our military forces, and the Committee reaffirms this policy."S.Rep. No. 9826, supra, at 157. The Senate Report specifically found that "[w]omen should not be intentionally or routinely placed in combat positions in our military services." Id. at 160. See S.Rep. No. 96-226, supra, at 9. [Footnote 12] The President expressed his intent to continue the current military policy precluding women from combat, see Presidential Recommendations 3, App. 34, and appellees present their argument concerning registration against the background of such restrictions on the use of women in combat. [Footnote 13] Consistent with the approach of this Court in Schlesinger v. Ballard, 419 U. S. 498 (1975), we must examine appellees' constitutional claim concerning registration with these combat restrictions firmly in mind.The existence of the combat restrictions clearly indicates the basis for Congress' decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them. Again turning to the Senate Report:"In the Committee's view, the starting point for any Page 453 U. S. 78 discussion of the appropriateness of registering women for the draft is the question of the proper role of women in combat. . . . The policy precluding the use of women in combat is, in the Committee's view, the most important reason for not including women in a registration system."S.Rep. No. 96-826, supra, at 157. [Footnote 14]The District Court stressed that the military need for women was irrelevant to the issue of their registration. As that court put it:"Congress could not constitutionally require registration under the MSSA of only black citizens or only white citizens, or single out any political or religious group simply because those groups contain sufficient persons to fill the needs of the Selective Service System."509 F. Supp. at 596. This reasoning is beside the point. The reason women are exempt from registration is not because military needs can be met by drafting men. This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups, such as would be the case with an all-black or all-white, or an all-Catholic or all-Lutheran, or an all-Republican or all-Democratic registration. Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.Congress' decision to authorize the registration of only men, Page 453 U. S. 79 therefore, does not violate the Due Process Clause. The exemption of women from registration is not only sufficiently, but also closely, related to Congress' purpose in authorizing registration. See Michael M., 450 U.S. at 450 U. S. 472-473 (plurality opinion); Craig v. Boren, 429 U. S. 190 (1976); Reed v. Reed, 404 U. S. 71 (1971). The fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration, since the purpose of registration is to develop a pool of potential combat troops. As was the case in Schlesinger v. Ballard, supra, "the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated" in this case. Michael M., supra, at 450 U. S. 469 (plurality opinion). The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.In holding the MSSA constitutionally invalid, the District Court relied heavily on the President's decision to seek authority to register women and the testimony of members of the Executive Branch and the military in support of that decision. See, e.g., 509 F. Supp. at 603-604, and n. 30. As stated by the administration's witnesses before Congress, however, the President's "decision to ask for authority to register women is based on equity." House Hearings 7 (statement of Assistant Secretary of Defense Pirie and Director of Selective Service System Rostker); see also Presidential Recommendations 3, 21, 22, App. 35, 59. 60; Hearings on S. 2294, at 1657 (statements of Executive Associate Director of Office of Management and Budget Wellford, Director of Selective Service System Rostker, and Principal Deputy Assistant Secretary of Defense Danzig). This was also the basis for the testimony by military officials. Id. at 710 (Gen. Meyer) 1002 (Gen. Allen). The Senate Report evaluating the testimony before the Committee, recognized that "[t]he argument for registration and induction of women . . . is not based on military Page 453 U. S. 80 necessity, but on considerations of equity." S.Rep. No. 96-826, p. 158 (1980). Congress was certainly entitled, in the exercise of its constitutional powers to raise and regulate armies and navies, to focus on the question of military need rather than "equity." [Footnote 15] As Senator Nunn of the Senate Armed Services Committee put it:"Our committee went into very great detail. We found that there was no military necessity cited by any witnesses for the registration of females.""The main point that those who favored the registration of females made was that they were in favor of this because of the equality issue, which is, of course, a legitimate view. But as far as military necessity, and that is what we are primarily, I hope, considering in the overall registration bill, there is no military necessity for this."126 Cong.Rec. 13893 (1980). See also House Hearings 20 (Rep. Holt) ("You are talking about equity. I am talking about military"). [Footnote 16]Although the military experts who testified in favor of registering women uniformly opposed the actual drafting of Page 453 U. S. 81 women, see, e.g., Hearing on S. 109 and S. 226, at 11 (Gen. Rogers), there was testimony that in the event of a draft of 650,000 the military could absorb some 80,000 female inductees. Hearings on S. 2294, at 1661, 1828. The 80,000 would be used to fill noncombat positions, freeing men to go to the front. In relying on this testimony in striking down the MSSA, the District Court palpably exceeded its authority when it ignored Congress' considered response to this line of reasoning.In the first place, assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans."It has been suggested that all women be registered, but only a handful actually be inducted in an emergency. The Committee finds this a confused and ultimately unsatisfactory solution."S.Rep. No. 96-826, supra, at 158. As the Senate Committee recognized a year before, "training would be needlessly burdened by women recruits who could not be used in combat." S.Rep. No. 96-226, p. 9 (1979). See also S.Rep. No. 96-826, supra, at 159 ("Other administrative problems such as housing and different treatment with regard to dependency, hardship and physical standards would also exist"). It is not for this Court to dismiss such problems as insignificant in the context of military preparedness and the exigencies of a future mobilization.Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether 80,000 or less, it could be met by volunteers. See id. at 160; id. at 158 ("Because of the combat restrictions, the need would be primarily for men, and women volunteers would fill the requirements for women"); House Hearings 19 (Rep. Holt). See also Hearings on S. 2294, at 1195 (Gen. Rogers).Most significantly, Congress determined that staffing noncombat positions with women during a mobilization would Page 453 U. S. 82 be positively detrimental to the important goal of military flexibility.". . . [T]here are other military reasons that preclude very large numbers of women from serving. Military flexibility requires that a commander be able to move units or ships quickly. Units or ships not located at the front or not previously scheduled for the front nevertheless must be able to move into action if necessary. In peace and war, significant rotation of personnel is necessary. We should not divide the military into two groups -- one in permanent combat and one in permanent support. Large numbers of non-combat positions must be available to which combat troops can return for duty before being redeployed."S.Rep. No. 96-826, supra, at 158. The point was repeated in specific findings, id. at 160; see also S.Rep. No. 9226, supra, at 9. In sum, Congress carefully evaluated the testimony that 80,000 women conscripts could be usefully employed in the event of a draft, and rejected it in the permissible exercise of its constitutional responsibility. See also Hearing on S. 109 and S. 226, at 16 (Gen. Rogers); [Footnote 17] Hearings on S. 2294 at 1682. The District Page 453 U. S. 83 Court was quite wrong in undertaking an independent evaluation of this evidence, rather than adopting an appropriately deferential examination of Congress' evaluation of that evidence.In light of the foregoing, we conclude that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the Military Selective Service Act. The decision of the District Court holding otherwise is accordinglyReversed

U.S. Supreme CourtRostker v. Goldberg, 453 U.S. 57 (1981)Rostker v. Goldberg, 453 U.S. 57 (1981)No. 80-251Argued March 24, 1981 -- Decided June 25, 1981453 U.S. 57SyllabusThe Military Selective Service Act (Act) authorizes the President to require the registration for possible military service of males, but not females, the purpose of registration being to facilitate any eventual conscription under the Act. Registration for the draft was discontinued by Presidential Proclamation in 1975 (the Act was amended in 1973 to preclude conscription), but as the result of a crisis in Southwestern Asia, President Carter decided in 1980 that it was necessary to reactivate the registration process, and sought Congress' allocation of funds for that purpose. He also recommended that Congress amend the Act to permit the registration and conscription of women as well as men. Although agreeing that it was necessary to reactivate the registration process, Congress allocated only those funds necessary to register males, and declined to amend the Act to permit the registration of women. Thereafter, the President ordered the registration of specified groups of young men. In a lawsuit brought by several men challenging the Act's constitutionality, a three-judge District Court ultimately held that the Act's gender-based discrimination violated the Due Process Clause of the Fifth Amendment, and enjoined registration under the Act.Held: The Act's registration provisions do not violate the Fifth Amendment. Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women. Pp. 453 U. S. 64-83.(a) The customary deference accorded Congress' judgments is particularly appropriate when, as here, Congress specifically considered the question of the Act's constitutionality, and perhaps in no area has the Court accorded Congress greater deference than in the area of national defense and military affairs. While Congress is not free to disregard the Constitution when it acts in the area of military affairs, this Court must be particularly careful not to substitute its judgment of what is desirable for that of Congress, or its own evaluation of evidence for a reasonable evaluation by the Legislative Branch. Congress carefully considered whether to register only males for potential conscription or whether to register both sexes, and its broad constitutional authority Page 453 U. S. 58 cannot be ignored in considering the constitutionality of its studied choice of one alternative in preference to the other. Pp. 453 U. S. 64-72.(b) The question of registering women was extensively considered by Congress in hearings held in response to the President's request for authorization to register women, and its decision to exempt women was not the accidental byproduct of a traditional way of thinking about women. Since Congress thoroughly reconsidered the question of exempting women from the Act in 1980, the Act's constitutionality need not be considered solely on the basis of the views expressed by Congress in 1948, when the Act was first enacted in its modern form. Congress' determination that any future draft would be characterized by a need for combat troops was sufficiently supported by testimony adduced at the hearings so that the courts are not free to make their own judgment on the question. And since women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft or registration for a draft, and Congress' decision to authorize the registration of only men therefore does not violate the Due Process Clause. The testimony of executive and military officials before Congress showed that the argument for registering women was based on considerations of equity, but Congress was entitled, in the exercise of its constitutional powers, to focus on the question of military need, rather than "equity." The District Court, undertaking an independent evaluation of the evidence, exceeded its authority in ignoring Congress' conclusions that whatever the need for women for noncombat roles during mobilization, it could be met by volunteers, and that staffing noncombat positions with women during a mobilization would be positively detrimental to the important goal of military flexibility. Pp. 453 U. S. 72-83.509 F. Supp. 586, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ., joined. WHITE, J., post, p. 453 U. S. 83, and MARSHALL, J., post, p. 453 U. S. 86, filed dissenting opinions, in which BRENNAN, J., joined. Page 453 U. S. 59

1983_82-1167

JUSTICE STEVENS delivered the opinion of the Court.During their examination of a damaged package, the employees of a private freight carrier observed a white powdery substance, originally concealed within eight layers of wrappings. They summoned a federal agent, who removed a trace of the powder, subjected it to a chemical test and determined that it was cocaine. The question presented is whether the Fourth Amendment required the agent to obtain a warrant before he did so.The relevant facts are not in dispute. Early in the morning of May 1, 1981, a supervisor at the Minneapolis-St. Paul Airport Federal Express office asked the office manager to look at a package that had been damaged and torn by a forklift. They then opened the package in order to examine its contents pursuant to a written company policy regarding insurance claims.The container was an ordinary cardboard box wrapped in brown paper. Inside the box five or six pieces of crumpled newspaper covered a tube about 10 inches long; the tube was made of the silver tape used on basement ducts. The supervisor and office manager cut open the tube and found a series of four zip-lock plastic bags, the outermost enclosing the other three and the innermost containing about six and a half ounces of white powder. When they observed the white powder in the innermost bag, they notified the Drug Enforcement Administration. Before the first DEA agent arrived, they replaced the plastic bags in the tube and put the tube and the newspapers back into the box.When the first federal agent arrived, the box, still wrapped in brown paper, but with a hole punched in its side and the top open, was placed on a desk. The agent saw that one end of the tube had been slit open; he removed the four plastic bags from the tube and saw the white powder. He then opened each of the four bags and removed a trace of the Page 466 U. S. 112 white substance with a knife blade. A field test made on the spot identified the substance as cocaine. [Footnote 1]In due course, other agents arrived, made a second field test, rewrapped the package, obtained a warrant to search the place to which it was addressed, executed the warrant, and arrested respondents. After they were indicted for the crime of possessing an illegal substance with intent to distribute, their motion to suppress the evidence on the ground that the warrant was the product of an illegal search and seizure was denied; they were tried and convicted, and appealed. The Court of Appeals reversed. 683 F.2d 296 (CA8 1982). It held that the validity of the search warrant depended on the validity of the agents' warrantless test of the white powder, [Footnote 2] that the testing constituted a significant expansion of the earlier private search, and that a warrant was required.As the Court of Appeals recognized, its decision conflicted with a decision of another Court of Appeals on comparable facts, United States v. Barry, 673 F.2d 912 (CA6), cert. denied, 459 U.S. 927 (1982). [Footnote 3] For that reason, and because Page 466 U. S. 113 field tests play an important role in the enforcement of the narcotics laws, we granted certiorari, 460 U.S. 1021.IThe first Clause of the Fourth Amendment provides that the"right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ."This text protects two types of expectations, one involving "searches," the other "seizures." A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. [Footnote 4] A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property. [Footnote 5] This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable"to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official."Walter v. Page 466 U. S. 114 United States, 447 U. S. 649, 447 U. S. 662 (1980) (BLACKMUN, J., dissenting). [Footnote 6]When the wrapped parcel involved in this case was delivered to the private freight carrier, it was unquestionably an "effect" within the meaning of the Fourth Amendment. Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable. [Footnote 7] Even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package. [Footnote 8] Such a warrantless search could not be characterized as reasonable simply because, after the official invasion of privacy occurred, contraband is discovered. [Footnote 9] Conversely, in this case, the fact that agents of the private carrier independently opened the package and made an examination that might have been impermissible for a government agent Page 466 U. S. 115 cannot render otherwise reasonable official conduct unreasonable. The reasonableness of an official invasion of the citizen's privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred.The initial invasions of respondents' package were occasioned by private action. Those invasions revealed that the package contained only one significant item, a suspicious looking tape tube. Cutting the end of the tube and extracting its contents revealed a suspicious looking plastic bag of white powder. Whether those invasions were accidental or deliberate, [Footnote 10] and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character.The additional invasions of respondents' privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search. That standard was adopted by a majority of the Court in Walter v. United States, supra. In Walter, a private party had opened a misdirected carton, found rolls of motion picture films that appeared to be contraband, and turned the carton over to the Federal Bureau of Investigation. Later, without obtaining a warrant, FBI agents obtained a projector and viewed the films. While there was no single opinion of the Court, a majority did agree on the appropriate analysis of a governmental search which follows on the heels of a private one. Two Justices took the position:"If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official Page 466 U. S. 116 use of a private party's invasion of another person's privacy. Even though some circumstances -- for example, if the results of the private search are in plain view when materials are turned over to the Government -- may justify the Government's reexamination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening, one could only draw inferences about what was on the films. The projection of the films was a significant expansion of the search that had been conducted previously by a private party, and therefore must be characterized as a separate search."Id. at 447 U. S. 657 (opinion of STEVENS, J., joined by Stewart, J.) (footnote omitted). [Footnote 11] Four additional Justices, while disagreeing with this characterization of the scope of the private search, were also of the view that the legality of the governmental search must be tested by the scope of the antecedent private search.""Under these circumstances, since the L'Eggs employees so fully ascertained the nature of the films before contacting the authorities, we find that the FBI's subsequent viewing of the movies on a projector did not change the nature of the search,' and was not an additional search subject to the warrant requirement."" Id. at 447 U. S. 663-664 (BLACKMUN, J., dissenting, joined by BURGER, C.J., and POWELL and REHNQUIST, JJ.) (footnote omitted) (quoting United States v. Sanders, 592 Page 466 U. S. 117 F.2d 788, 793-794 (CA5 1979) (case below in Walter)). [Footnote 12] This standard follows from the analysis applicable when private parties reveal other kinds of private information to the authorities. It is well settled that, when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs, the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information:"This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed."United States v. Miller, 425 U. S. 435, 425 U. S. 443 (1976). [Footnote 13] The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. In such a case, the authorities have not relied on what is in effect a private Page 466 U. S. 118 search, and therefore presumptively violate the Fourth Amendment if they act without a warrant. [Footnote 14]In this case, the federal agents' invasions of respondents' privacy involved two steps: first, they removed the tube from the box, the plastic bags from the tube, and a trace of powder from the innermost bag; second, they made a chemical test of the powder. Although we ultimately conclude that both actions were reasonable for essentially the same reason, it is useful to discuss them separately.IIWhen the first federal agent on the scene initially saw the package, he knew it contained nothing of significance except a tube containing plastic bags and, ultimately, white powder. It is not entirely clear that the powder was visible to him before he removed the tube from the box. [Footnote 15] Even if the white Page 466 U. S. 119 powder was not itself in "plain view" because it was still enclosed in so many containers and covered with papers, there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell him anything more than he already had been told. Respondents do not dispute that the Government could utilize the Federal Express employees' testimony concerning the contents of the package. If that is the case, it hardly infringed respondents' privacy for the agents to reexamine the contents of the open package by brushing aside a crumpled newspaper and picking up the tube. The advantage the Government gained thereby was merely avoiding the risk of a flaw in the employees' recollection, rather than in further infringing respondents' privacy. Protecting the risk of misdescription hardly enhances any legitimate privacy interest, and is not protected by the Fourth Amendment. [Footnote 16] Respondents could have no privacy interest in the contents of the package, since it remained unsealed and since the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to their offices for the express purpose of viewing its contents. The agent's viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment. Page 466 U. S. 120 See Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 487-490 (1971); Burdeau v. McDowell, 256 U. S. 465, 256 U. S. 475-476 (1921).Similarly, the removal of the plastic bags from the tube and the agent's visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search. [Footnote 17] It infringed no legitimate expectation of privacy, and hence was not a "search" within the meaning of the Fourth Amendment.While the agents' assertion of dominion and control over the package and its contents did constitute a "seizure," [Footnote 18] that Page 466 U. S. 121 seizure was not unreasonable. The fact that, prior to the field test, respondents' privacy interest in the contents of the package had been largely compromised is highly relevant to the reasonableness of the agents' conduct in this respect. The agents had already learned a great deal about the contents of the package from the Federal Express employees, all of which was consistent with what they could see. The package itself, which had previously been opened, remained unsealed, and the Federal Express employees had invited the agents to examine its contents. Under these circumstances, the package could no longer support any expectation of privacy; it was just like a balloon "the distinctive character [of which] spoke volumes as to its contents -- particularly to the trained eye of the officer," Texas v. Brown, 460 U. S. 730, 460 U. S. 743 (1983) (plurality opinion); see also id. at 460 U. S. 746 (POWELL, J., concurring in judgment); or the hypothetical gun case in Arkansas v. Sanders, 442 U. S. 753, 442 U. S. 764-765, n. 13 (1979). Such containers may be seized, at least temporarily, without a warrant. [Footnote 19] Accordingly, since it was apparent that the tube and plastic bags contained contraband and little else, this warrantless seizure was reasonable, [Footnote 20] for it is well settled that it is constitutionally reasonable for law enforcement officials to seize "effects" that cannot support a justifiable expectation Page 466 U. S. 122 of privacy without a warrant, based on probable cause to believe they contain contraband. [Footnote 21]IIIThe question remains whether the additional intrusion occasioned by the field test, which had not been conducted by the Federal Express employees and therefore exceeded the scope of the private search, was an unlawful "search" or "seizure" within the meaning of the Fourth Amendment.The field test at issue could disclose only one fact previously unknown to the agent -- whether or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or talcum powder. We must first determine whether this can be considered a "search" subject to the Fourth Amendment -- did it infringe an expectation of privacy that society is prepared to consider reasonable?The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities. [Footnote 22] Indeed, this distinction underlies the rule that Page 466 U. S. 123 government may utilize information voluntarily disclosed to a governmental informant, despite the criminal's reasonable expectation that his associates would not disclose confidential information to the authorities. See United States v. White, 401 U. S. 745, 401 U. S. 751-752 (1971) (plurality opinion).A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative -- merely disclosing that the substance is something other than cocaine -- such a result reveals nothing of special interest. Congress has decided -- and there is no question about its power to do so -- to treat the interest in "privately" possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably "private" fact, compromises no legitimate privacy interest. [Footnote 23]This conclusion is dictated by United States v. Place, 462 U. S. 696 (1983), in which the Court held that subjecting luggage to a "sniff test" by a trained narcotics detection dog was not a "search" within the meaning of the Fourth Amendment: Page 466 U. S. 124"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."Id. at 462 U. S. 707. [Footnote 24]Here, as in Place, the likelihood that official conduct of the kind disclosed by the record will actually compromise any legitimate interest in privacy seems much too remote to characterize the testing as a search subject to the Fourth Amendment.We have concluded, in 466 U. S. supra, that the initial "seizure" of the package and its contents was reasonable. Nevertheless, as Place also holds, a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the the Fourth Amendment's prohibition on "unreasonable seizures." [Footnote 25] Here, the field test did affect respondents' possessory interests protected by the Amendment, since ,by destroying a quantity of the powder, it converted Page 466 U. S. 125 what had been only a temporary deprivation of possessory interests into a permanent one. To assess the reasonableness of this conduct,"[w]e 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."462 U.S. at 462 U. S. 703. [Footnote 26]Applying this test, we conclude that the destruction of the powder during the course of the field test was reasonable. The law enforcement interests justifying the procedure were substantial; the suspicious nature of the material made it virtually certain that the substance tested was in fact contraband. Conversely, because only a trace amount of material was involved, the loss of which appears to have gone unnoticed by respondents, and since the property had already been lawfully detained, the "seizure" could, at most, have only a de minimis impact on any protected property interest. Cf. Cardwell v. Lewis, 417 U. S. 583, 417 U. S. 591-592 (1974) (plurality opinion) (examination of automobile's tires and taking of paint scrapings was a de minimis invasion of constitutional interests). [Footnote 27] Under these circumstances, the safeguards of a warrant would only minimally advance Fourth Amendment interests. This warrantless "seizure" was reasonable. [Footnote 28] Page 466 U. S. 126 In sum, the federal agents did not infringe any constitutionally protected privacy interest that had not already been frustrated as the result of private conduct. To the extent that a protected possessory interest was infringed, the infringement was de minimis and constitutionally reasonable. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtUnited States v. Jacobsen, 466 U.S. 109 (1984)United States v. JacobsenNo. 82-1167Argued December 7, 1984Decided April 2, 1984466 U.S. 109SyllabusDuring their examination of a damaged package, consisting of a cardboard box wrapped in brown paper, the employees of a private freight carrier observed a white powdery substance in the innermost of a series of four plastic bags that had been concealed in a tube inside the package. The employees then notified the Drug Enforcement Administration (DEA), replaced the plastic bags in the tube, and put the tube back into the box. When a DEA agent arrived, he removed the tube from the box and the plastic bags from the tube, saw the white powder, opened the bags, removed a trace of the powder, subjected it to a field chemical test, and determined it was cocaine. Subsequently, a warrant was obtained to search the place to which the package was addressed, the warrant was executed, and respondents were arrested. After respondents were indicted for possessing an illegal substance with intent to distribute, their motion to suppress the evidence on the ground that the warrant was the product of an illegal search and seizure was denied, and they were tried and convicted. The Court of Appeals reversed, holding that the validity of the warrant depended on the validity of the warrantless test of the white powder, that the testing constituted a significant expansion of the earlier private search, and that a warrant was required.Held: The Fourth Amendment did not require the DEA agent to obtain a warrant before testing the white powder. Pp. 466 U. S. 113-126.(a) The fact that employees of the private carrier independently opened the package and made an examination that might have been impermissible for a Government agent cannot render unreasonable otherwise reasonable official conduct. Whether those employees' invasions of respondents' package were accidental or deliberate or were reasonable or unreasonable, they, because of their private character, did not violate the Fourth Amendment. The additional invasions of respondents' privacy by the DEA agent must be tested by the degree to which they exceeded the scope of the private search. Pp. 466 U. S. 113-118.(b) The DEA agent's removal of the plastic bags from the tube and his visual inspection of their contents enabled him to learn nothing that had not previously been learned during the private search. It infringed no legitimate expectation of privacy, and hence was not a "search" within the meaning of the Fourth Amendment. Although the agent's assertion of dominion and control over the package and its contents constituted a Page 466 U. S. 110 "seizure," the seizure was reasonable, since it was apparent that the tube and plastic bags contained contraband and little else. In light of what the agent already knew about the contents of the package, it was as if the contents were in plain view. It is constitutionally reasonable for law enforcement officials to seize "effects" that cannot support a justifiable expectation of privacy without a warrant based on probable cause to believe they contain contraband. Pp. 466 U. S. 118-122.(c) The DEA agent's field test, although exceeding the scope of the private search, was not an unlawful "search" or "seizure" within the meaning of the Fourth Amendment. Governmental conduct that can reveal whether a substance is cocaine, and no other arguably "private" fact, compromises no legitimate privacy interest. United States v. Place, 462 U. S. 696. The destruction of the white powder during the course of the field test was reasonable. The law enforcement interests justifying the procedure were substantial, whereas, because only a trace amount of material was involved and the property had already been lawfully detained, the warrantless "seizure" could have only a de minimis impact on any protected property interest. Under these circumstances, the safeguards of a warrant would only minimally advance Fourth Amendment interests. Pp. 466 U. S. 122-125.683 F.2d 296, reversed.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and in Part III of which WHITE, J., joined. WHITE, J., filed an opinion concurring in part and concurring in the judgment, post, p. 466 U. S. 126. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 466 U. S. 133. Page 466 U. S. 111

1965_59

MR. JUSTICE FORTAS delivered the opinion of the Court.These are direct appeals from the dismissal in part of two indictments returned by the United States Grand Jury for the Southern District of Mississippi. The indictments allege assaults by the accused persons upon the rights of the asserted victims to due process of law under the Fourteenth Amendment. The indictment in No. 59 charges 18 persons [Footnote 1] with violations of 18 U.S.C. § 241 (1964 ed.). In No. 60, the same 18 persons are charged with offenses based upon 18 U.S.C. § 242 (1964 ed.). These are among the so-called civil rights statutes which have come to us from Reconstruction days, the period in our history which also produced the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution.The sole question presented in these appeals is whether the specified statutes make criminal the conduct for which the individuals were indicted. It is an issue of construction, not of constitutional power. We have no doubt of"the power of Congress to enforce by appropriate criminal sanction every right guaranteed by the Due Process Clause of the Fourteenth Amendment."United States v. Williams, 341 U. S. 70, 341 U. S. 72. [Footnote 2] Page 383 U. S. 790The events upon which the charges are based, as alleged in the indictments, are as follows: On June 21, 1964, Cecil Ray Price, the Deputy Sheriff of Neshoba County, Mississippi, detained Michael Henry Schwerner, James Earl Chaney and Andrew Goodman in the Neshoba County jail located in Philadelphia, Mississippi. He released them in the dark of that night. He then proceeded by automobile on Highway 19 to intercept his erstwhile wards. He removed the three men from their automobile, placed them in an official automobile of the Neshoba County Sheriff's office, and transported them to a place on an unpaved road.These acts, it is alleged, were part of a plan and conspiracy whereby the three men were intercepted by the 18 defendants, including Deputy Sheriff Price, Sheriff Rainey and Patrolman Willis of the Philadelphia, Mississippi, Police Department. The purpose and intent of the release from custody and the interception, according to the charge, were to "punish" the three men. The defendants, it is alleged, "did willfully assault, shoot and kill" each of the three. And, the charge continues, the bodies of the three victims were transported by one of the defendants from the rendezvous on the unpaved road to the vicinity of the construction site of an earthen dam approximately five miles southwest of Philadelphia, Mississippi. Page 383 U. S. 791These are federal, and not state, indictments. They do not charge as crimes the alleged assaults or murders. The indictments are framed to fit the stated federal statutes, and the question before us is whether the attempt of the draftsman for the Grand Jury in Mississippi has been successful: whether the indictments charge offenses against the various defendants which may be prosecuted under the designated federal statutes.We shall deal first with the indictment in No. 60, based on § 242 of the Criminal Code, and then with the indictment in No. 59, under § 241. We do this for ease of exposition and because § 242 was enacted by the Congress about four years prior to § 241. [Footnote 3] Section 242 was enacted in 1866; § 241 in 1870.I. No. 60Section 242 defines a misdemeanor, punishable by fine of not more than $1,000 or imprisonment for not more than one year, or both. So far as here significant, it provides punishment for"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. . . ."The indictment in No. 60 contains four counts, each of which names as defendants the three officials and 15 nonofficial persons. The First Count charges, on the basis of allegations substantially as set forth above, that all of the defendants conspired "to willfully subject" Schwerner, Chaney and Goodman"to the deprivation Page 383 U. S. 792 of their right, privilege and immunity secured and protected by the Fourteenth Amendment to the Constitution of the United States not to be summarily punished without due process of law by persons acting under color of the laws of the State of Mississippi."This is said to constitute a conspiracy to violate § 242, and therefore an offense under 18 U.S.C. § 371 (1964 ed.). The latter section, the general conspiracy statute, makes it a crime to conspire to commit any offense against the United States. The penalty for violation is the same as for direct violation of § 242 -- that is, it is a misdemeanor. [Footnote 4]On a motion to dismiss, the District Court sustained this First Count as to all defendants. As to the sheriff, deputy sheriff and patrolman, the court recognized that each was clearly alleged to have been acting "under color of law," as required by § 242. [Footnote 5] As to the private persons, the District Court held that "[I]t is immaterial to the conspiracy that these private individuals were not acting under color of law," because the count charges that they were conspiring with persons who were so acting. See United States v. Rabinowich, 238 U. S. 78, 238 U. S. 87.The court necessarily was satisfied that the indictment, in alleging the arrest, detention, release, interception and killing of Schwerner, Chaney and Goodman, adequately stated as the purpose of the conspiracy, a violation of § 242, and that this section could be violated by "willfully subject[ing the victims] . . . to the deprivation of their right, privilege and immunity" under the Due Process Clause of the Fourteenth Amendment. Page 383 U. S. 793No appeal was taken by the defendants from the decision of the trial court with respect to the First Count, and it is not before us for adjudication.The Second, Third and Fourth Counts of the indictment in No. 60 charge all of the defendants not with conspiracy, but with substantive violations of § 242. Each of these counts charges that the defendants, acting "under color of the laws of the State of Mississippi," "did willfully assault, shoot and kill" Schwerner, Chaney and Goodman, respectively, "for the purpose and with the intent" of punishing each of the three, and that the defendants "did thereby willfully deprive" each "of rights, privileges and immunities secured and protected by the Constitution and the laws of the United States" -- namely, due process of law.The District Court held these counts of the indictment valid as to the sheriff, deputy sheriff and patrolman. But it dismissed them as against the nonofficial defendants because the counts do not charge that the latter were "officers, in fact, or de facto in anything allegedly done by them under color of law.'"We note that, by sustaining these counts against the three officers, the court again necessarily concluded that an offense under § 242 is properly stated by allegations of willful deprivation, under color of law, of life and liberty without due process of law. We agree. No other result would be permissible under the decisions of this Court. Screws v. United States, 325 U. S. 91; Williams II. [Footnote 6] Page 383 U. S. 794But we cannot agree that the Second, Third or Fourth Counts may be dismissed as against the nonofficial defendants. Section 242 applies only were a person indicted has acted "under color" of law. Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents. [Footnote 7] Page 383 U. S. 795In the present case, according to the indictment, the brutal joint adventure was made possible by state detention and calculated release of the prisoners by an officer of the State. This action, clearly attributable to the State, was part of the monstrous design described by the indictment. State officers participated in every phase of the alleged venture: the release from jail, the interception, assault, and murder. It was a joint activity, from start to finish. Those who took advantage of participation by state officers in accomplishment of the foul purpose alleged must suffer the consequences of that participation. In effect, if the allegations are true, they were participants in official lawlessness, acting in willful concert with state officers and hence under color of law.Appellees urge that the decision of the District Court was based upon a construction of the indictment to the effect that it did not charge the private individuals with acting "under color" of law. Consequently, they urge us to affirm in No. 60. In any event, they submit, since the trial court's decision was based on the inadequacy of the indictment, and not on construction of the statute, we have no jurisdiction to review it on direct appeal. United States v. Swift & Co., 318 U. S. 442. We do not agree. Each count of the indictment specifically alleges that all of the defendants were acting "under color of the laws of the State of Mississippi." The fault lies not in the indictment, but in the District Court's view that the statute requires that each offender be an official or that Page 383 U. S. 796 he act in an official capacity. We have jurisdiction to consider this statutory question on direct appeal and, as we have shown, the trial court's determination of it is in error. Since each of the private individuals is indictable as a principal acting under color of law, we need not consider whether he might be held to answer as an "aider or abettor" under 18 U.S.C. § 2 (1964 ed.), despite omission to include such a charge in the indictment.Accordingly, we reverse the dismissal of the Second, Third and Fourth Counts of the indictment in No. 60, and remand for trial.II. No. 59No. 59 charges each of the 18 defendants with a felony -- a violation of § 241. This indictment is in one count. It charges that the defendants "conspired together . . . to injure, oppress, threaten and intimidate" Schwerner, Chaney and Goodman"in the free exercise and enjoyment of the right and privilege secured to them by the Fourteenth Amendment to the Constitution of the United States not to be deprived of life or liberty without due process of law by persons acting under color of the laws of Mississippi."The indictment alleges that it was the purpose of the conspiracy that Deputy Sheriff Price would release Schwerner, Chaney and Goodman from custody in the Neshoba County jail at such time that Price and the other 17 defendants "could and would intercept" them "and threaten, assault, shoot and kill them." The penalty under § 241 is a fine of not more than $5,000, or imprisonment for not more than 10 years, or both.Section 241 is a conspiracy statute. It reads as follows:"If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the Page 383 U. S. 797 United States, or because of his having so exercised the same; or""If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured --""They shall be fined not more than $5,000 or imprisoned not more than ten years, or both."The District Court dismissed the indictment as to all defendants. In effect, although § 241 includes rights or privileges secured by the Constitution or laws of the United States without qualification or limitation, the court held that it does not include rights protected by the Fourteenth Amendment.It will be recalled that, in No. 60, the District Court held that § 242 included the denial of Fourteenth Amendment rights -- the same right to due process involved in the indictment under § 241. Both include rights or privileges secured by the Constitution or laws of the United States. Neither is qualified or limited. Each includes, presumably, all of the Constitution and laws of the United States. To the reader of the two sections, versed only in the English language, it may seem bewildering that the two sections could be so differently read.But the District Court purported to read the statutes with the gloss of Williams I. In that case, the only case in which this Court has squarely confronted the point at issue, the Court did, in fact, sustain dismissal of an indictment under § 241. But it did not, as the District Court incorrectly assumed, hold that § 241 is inapplicable to Fourteenth Amendment rights. The Court divided equally on the issue. Four Justices, in an opinion by Mr. Justice Frankfurter, were of the view that § 241 "only covers conduct which interferes with rights arising from the substantive powers of the Federal Government" -- rights "which Congress can beyond doubt Page 383 U. S. 798 constitutionally secure against interference by private individuals." 341 U.S. at 341 U. S. 73, 341 U. S. 77. Four other Justices, in an opinion by MR. JUSTICE DOUGLAS, found no support for Mr. Justice Frankfurter's view in the language of the section, its legislative history, or its judicial interpretation up to that time. They read the statute as plainly covering conspiracies to injure others in the exercise of Fourteenth Amendment rights. They could see no obstacle to using it to punish deprivations of such rights. Dismissal of the indictment was affirmed because MR. JUSTICE BLACK voted with those who joined Mr. Justice Frankfurter. He did so, however, for an entirely different reason -- that the prosecution was barred by res judicata -- and he expressed no view on the issue whether "§ 241, as applied, is too vague and uncertain in scope to be consistent with the Fifth Amendment." Williams I thus left the proper construction of § 241, as regards its applicability to protect Fourteenth Amendment rights, an open question.In view of the detailed opinions in Williams I, it would be supererogation to track the arguments in all of their intricacy. On the basis of an extensive reexamination of the question, we conclude that the District Court erred; that § 241 must be read as it is written -- to reach conspiracies"to injure . . . any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . . ;"that this language includes rights or privileges protected by the Fourteenth Amendment; that whatever the ultimate coverage of the section may be, it extends to conspiracies otherwise within the scope of the section, participated in by officials alone or in collaboration with private persons, and that the indictment in No. 59 properly charges such a conspiracy in violation of § 241. We shall confine ourselves to a review of the major considerations which induce our conclusion. Page 383 U. S. 7991. There is no doubt that the indictment in No. 59 sets forth a conspiracy within the ambit of the Fourteenth Amendment. Like the indictment in No. 60, supra, it alleges that the defendants acted "under color of law," and that the conspiracy included action by the State, through its law enforcement officers, to punish the alleged victims without due process of law in violation of the Fourteenth Amendment's direct admonition to the States.The indictment specifically alleges that the sheriff, deputy sheriff and a patrolman participated in the conspiracy; that it was a part of the "plan and purpose of the conspiracy" that Deputy Sheriff Price,"while having [the three victims] . . . in his custody in the Neshoba County Jail . . . , would release them from custody at such time that he [and others of the defendants] . . . could and would intercept [the three victims] . . . and threaten, assault, shoot and kill them."This is an allegation of state action which, beyond dispute, brings the conspiracy within the ambit of the Fourteenth Amendment. It is an allegation of official, state participation in murder, accomplished by and through its officers with the participation of others. It is an allegation that the State, without the semblance of due process of law as required of it by the Fourteenth Amendment, used its sovereign power and office to release the victims from jail so that they were not charged and tried, as required by law, but instead could be intercepted and killed. If the Fourteenth Amendment forbids denial of counsel, it clearly denounces denial of any trial at all.As we have consistently held "The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals." Williams I, 341 U.S. at 341 U. S. 92 (opinion of DOUGLAS, J.). In the present case, the participation by law enforcement officers, as Page 383 U. S. 800 alleged in the indictment, is clearly state action, as we have discussed, and it is therefore within the scope of the Fourteenth Amendment.2. The argument, however, of Mr. Justice Frankfurter's opinion in Williams I, upon which the District Court rests its decision cuts beneath this. It does not deny that the accused conduct is within the scope of the Fourteenth Amendment, but it contends that, in enacting § 241, the Congress intended to include only the rights and privileges conferred on the citizen by reason of the "substantive" powers of the Federal Government -- that is, by reason of federal power operating directly upon the citizen, and not merely by means of prohibitions of state action. As the Court of Appeals for the Fifth Circuit in Williams I, relied upon in the opinion below, put it,"the Congress had in mind the federal rights and privileges which appertain to citizens as such, and not the general rights extended to all persons by the . . . Fourteenth Amendment."179 F.2d 644, 648. We do not agree.The language of § 241 is plain and unlimited. As we have discussed, its language embraces all of the rights and privileges secured to citizens by all of the Constitution and all of the laws of the United States. There is no indication in the language that the sweep of the section is confined to rights that are conferred by or "flow from" the Federal Government, as distinguished from those secured or confirmed or guaranteed by the Constitution. We agree with the observation of Mr. Justice Holmes in United States v. Mosley, 238 U. S. 383, 238 U. S. 387-388, that"The source of this section in the doings of the Ku Klux and the like is obvious, and acts of violence obviously were in the mind of Congress. Naturally Congress put forth all its powers. . . . [T]his section Page 383 U. S. 801 dealt with Federal rights and with all Federal rights, and protected them in the lump. . . . [It should not be construed so] as to deprive citizens of the United States of the general protection which, on its face, § 19 [now § 241] most reasonably affords. [Footnote 8]"We believe, with Mr. Justice Holmes, that the history of the events from which § 241 emerged illuminates the purpose and means of the statute with an unmistakable light. We think that history leaves no doubt that, if we are to give § 241 the scope that its origins dictate, we must accord it a sweep as broad as its language. We are not at liberty to seek ingenious analytical instrument for excluding from its general language the Due Process Clause of the Fourteenth Amendment -- particularly since the violent denial of legal process was one of the reasons motivating enactment of the section. [Footnote 9]Section 241 was enacted as part of what came to be known as the Enforcement Act of 1870, 16 Stat. 140. [Footnote 10] The Act was passed on May 31, 1870, only a few months Page 383 U. S. 802 after ratification of the Fifteenth Amendment. In addition to the new § 241, it included a reenactment of a provision of the Civil Rights Act of 1866 which is now § 242. The intended breadth of § 241 is emphasized by contrast with the narrowness of § 242 as it then was. [Footnote 11] Section 242 forbade the deprivation, "under color of any law," of "any right secured or protected by this act." The rights protected by the Act were narrow and specific:"to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens [and to] be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other."Act of May 31, 1870, § 16, 16 Stat. 144, reenacting, with minor changes, Act of April 9, 1866, § 1, 14 Stat. 27. Between 1866 and 1870, there was much agitated criticism in the Congress and in the Nation because of the continued denial of rights to Negroes, sometimes accompanied by violent assaults. In response to the demands for more stringent legislation, Congress enacted the Enforcement Act of 1870. Congress had before it and reenacted § 242, which was explicitly limited as we have described. At the same time, it included § 241 in the Act using broad language to cover not just the rights enumerated in § 242, but all rights and privileges under the Constitution and laws of the United States. Page 383 U. S. 803It was not until the statutory revision of 1874 that the specific enumeration of protected rights was eliminated from § 242. The section was then broadened to include as wide a range of rights as § 241 already did: "any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States." The substantial change thus effected was made with the customary stout assertions of the codifiers that they had merely clarified and reorganized, without changing substance. [Footnote 12] Section 241 was left essentially unchanged, and neither in the 1874 revision nor in any subsequent reenactment has there been the slightest indication of a congressional intent to narrow or limit the original broad scope of § 241. It is clear, therefore, that § 241, from original enactment through subsequent codifications, was intended to deal, as Mr. Justice Holmes put it, with conspiracies to interfere with "Federal rights and with all Federal rights." We find no basis whatsoever for a Judgment of Solomon which would give to the statute less than its words command. [Footnote 13]The purpose and scope of the 1866 and 1870 enactments must be viewed against the events and passions of the time. [Footnote 14] The Civil War had ended in April, 1865. Relations between Negroes and whites were increasingly turbulent. [Footnote 15] Congress had taken control of the entire Page 383 U. S. 804 governmental process in former Confederate States. It had declared the governments in 10 "unreconstructed" States to be illegal, and had set up federal military administrations in their place. Congress refused to seat representatives from these States until they had adopted constitutions guaranteeing Negro suffrage, and had ratified the Fourteenth Amendment. Constitutional conventions were called in 1868. Six of the 10 States fulfilled Congress' requirements in 1868, the other four by 1870.For a few years, "radical" Republicans dominated the governments of the Southern States, and Negroes played a substantial political role. But countermeasures were swift and violent. The Ku Klux Klan was organized by southern whites in 1866, and a similar organization appeared with the romantic title of the Knights of the White Camellia. In 1868, a wave of murders and assaults was launched including assassinations designed to keep Negroes from the polls. [Footnote 16] The States themselves were helpless, despite the resort by some of them to extreme measures such as making it legal to hunt down and shoot any disguised man. [Footnote 17]Within the Congress, pressures mounted in the period between the end of the war and 1870 for drastic measures. A few months after the ratification of the Thirteenth Amendment on December 6, 1865, Congress, on April 9, 1866, enacted the Civil Rights Act of 1866, which, as we have described, included § 242 in its originally narrow form. On June 13, 1866, the Fourteenth Amendment was proposed, and it was ratified in July, 1868. In February, 1869, the Fifteenth Amendment was proposed, Page 383 U. S. 805 and it was ratified in February, 1870. On May 31, 1870, the Enforcement Act of 1870 was enacted.In this context, it is hardly conceivable that Congress intended § 241 to apply only to a narrow and relatively unimportant category of rights. [Footnote 18] We cannot doubt that the purpose and effect of § 241 was to reach assaults upon rights under the entire Constitution, including the Thirteenth, Fourteenth and Fifteenth Amendments, and not merely under part of it.This is fully attested by the only statement explanatory of § 241 in the recorded congressional proceedings relative to its enactment. We refer to the speech of Senator Pool of North Carolina, who introduced the provisions as an amendment to the Enforcement Act of 1870. The Senator's remarks are printed in full in the 383 U.S. 787app|>Appendix to this opinion. [Footnote 19] He urged that the section was needed in order to punish invasions of the newly adopted Fourteenth and Fifteenth Amendments to the Constitution. He acknowledged that the States, as such, were beyond the reach of the punitive process, and that the legislation must therefore operate upon individuals. He made it clear that "It matters not whether those individuals be officers or whether they are acting upon their own responsibility." We find no evidence whatever that Senator Pool intended that § 241 should not cover violations Page 383 U. S. 806 of Fourteenth Amendment rights, or that it should not include state action or actions by state officials.We conclude, therefore, that it is incumbent upon us to read § 241 with full credit to its language. Nothing in the prior decisions of this Court or of other courts which have considered the matter stands in the way of that conclusion. [Footnote 20]The present application of the statutes at issue does not raise fundamental questions of federal-state relationships. We are here concerned with allegations which squarely and indisputably involve state action in direct violation of the mandate of the Fourteenth Amendment -- that no State shall deprive any person of life or liberty without due process of law. This is a direct, traditional concern of the Federal Government. It is an area in which the federal interest has existed for at least a century, and in which federal participation has intensified as part of a renewed emphasis upon civil rights. Even as recently as 1951, when Williams I was decided, the federal role in the establishment and vindication of fundamental rights -- such as the freedom to travel, nondiscriminatory access to public areas and nondiscriminatory educational facilities -- was neither as pervasive nor as intense as it is today. Today, a decision interpreting a federal law in accordance with its historical design, to punish denials by state action of constitutional rights of the person, can hardly be regarded as adversely affecting "the wise adjustment between State responsibility and national control. . . ." Williams I, Page 383 U. S. 807 341 U.S. at 341 U. S. 73 (opinion of Frankfurter, J.). In any event, the problem, being statutory, and not constitutional, is ultimately, as it was in the beginning, susceptible of congressional disposition.Reversed

U.S. Supreme CourtUnited States v. Price, 383 U.S. 787 (1966)United States v. PriceNos. 59 and 60Argued November 9, 1965Decided March 28, 1966383 U.S. 787SyllabusAppellees are three Mississippi law enforcement officials and 15 private individuals who are alleged to have conspired to deprive three individuals of their rights under the Fourteenth Amendment. The alleged conspiracy involved releasing the victims from jail at night; intercepting, assaulting and killing them, and disposing of their bodies. Its purpose was to "punish" the victims summarily. Two indictments were returned. One charged all appellees with a conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 242, which makes it a misdemeanor willfully and under color of law to subject any person to the deprivation of any rights secured or protected by the Constitution. The indictment also charged all appellees with substantive violations of § 242. The District Court sustained the conspiracy count against a motion to dismiss, and sustained the substantive counts as to the three official defendants. It dismissed the substantive counts as to the 15 private defendants on the ground that, although the indictment alleged that they had acted "under color" of law, it did not allege that they were acting as officers of the State. This dismissal is here on direct appeal as No. 60. The other indictment charged all appellees with a conspiracy in violation of 18 U.S.C. § 241, making it a felony to conspire to interfere with a citizen in the free exercise or enjoyment of any right secured or protected by the Constitution or laws of the United States. The District Court dismissed this indictment as to all appellees on the ground that § 241 does not include rights protected by the Fourteenth Amendment. This dismissal is here on direct appeal as No. 59.Held:1. The District Court erred in dismissing the indictment in No. 60 insofar as it charged the private defendants with substantive violations of § 242. Pp. 383 U. S. 794-796.(a) "To act under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents." Pp. 383 U. S. 794-795. Page 383 U. S. 788(b) The dismissal of the indictment in No. 60 as to the private persons resulted from the District Court's erroneous construction of the "under color" of law requirement of § 242 as making the statute inapplicable to nonofficials, not upon a construction of the indictment as a pleading; hence the dismissal is reviewable on direct appeal. Pp. 383 U. S. 795-796.2. Section 241 includes within its protection rights secured or protected by the Fourteenth Amendment, and the District Court accordingly erred in dismissing the indictment in No. 59. Pp. 383 U. S. 796-807.(a) The District Court incorrectly assumed that United States v. Williams, 341 U. S. 70, authoritatively determined the inapplicability of § 241 to deprivations of Fourteenth Amendment rights. The Justices who reached that issue in Williams divided equally on the question. That case "thus left the proper construction of § 241, as regards its applicability to protect Fourteenth Amendment rights, an open question." Pp. 383 U. S. 797-798.(b) "There is no doubt that the indictment in No. 59 sets forth a conspiracy within the ambit of the Fourteenth Amendment. Like the indictment in No. 60 . . . , it alleges that the defendants acted under color of law,' and that the conspiracy included action by the State through its law enforcement officers to punish the alleged victims without due process of law in violation of the Fourteenth Amendment's direct admonition to the States." Pp. 383 U. S. 799-800.(c) The wording of § 241 suggests no limitation of its coverage to exclude Fourteenth Amendment rights. "The language of § 241 is plain and unlimited. . . . [I]ts language embraces all of the rights and privileges secured to citizens by all of the Constitution and all of the laws of the United States." P. 383 U. S. 800.(d) The legislative history of § 241 supports the view that it was intended to encompass Fourteenth Amendment rights within its protection. Pp. 383 U. S. 800-806.Reversed and remanded. Page 383 U. S. 789

1977_76-558

MR. JUSTICE POWELL delivered the opinion of the Court.We consider on this appeal whether administrative regulations of the State of Wisconsin governing the length and configuration of trucks that may be operated within the State violate the Commerce Clause because they unconstitutionally burden or discriminate against interstate commerce. The three-judge District Court held that the regulations are not unconstitutional on either ground. Because we conclude that they unconstitutionally burden interstate commerce, we reverse.IAppellant Raymond Motor Transportation, Inc. (Raymond), a Minnesota corporation with its principal place of business in Page 434 U. S. 431 Minneapolis, is a common carrier of general commodities by motor vehicle. Operating pursuant to a certificate of public convenience and necessity granted by the Interstate Commerce Commission, see 49 U.S.C. §§ 306-308, Raymond provides service in eastern North Dakota, Minnesota, northern Illinois, and northwestern Indiana. Its primary interstate route is between Chicago and Minneapolis. It does not serve any points in Wisconsin.Appellant Consolidated Freightways Corporation of Delaware (Consolidated), a Delaware corporation with its principal place of business in Menlo Park, Cal., also is a common carrier of general commodities by motor vehicle. Consolidated operates nationwide, providing service under a certificate of public convenience and necessity in 42 States and Canada. Among other routes, Consolidated carries commodities between Chicago, Detroit, and points east, and Minneapolis and points west to Seattle. Unlike Raymond, Consolidated does carry commodities between Wisconsin and other States, and it maintains terminals in Milwaukee and Madison where truckloads of goods are dispatched and received.Both Raymond and Consolidated use two different kinds of trucks. One consists of a three-axle power unit (tractor) which pulls a single two-axle trailer that is 40 feet long. The overall length of such a single-trailer unit (single) is 55 feet. This unit has been used on the Nation's highways for many years, and is an industry standard. The other type truck consists of a two-axle tractor which pulls a single-axle trailer to which a single-axle dolly and a second single-axle trailer are attached. Each trailer is 27 feet long, and the overall length of such a double trailer unit (double) is 65 feet. [Footnote 1]The double, which has come into increasing use in recent years, is thought to have certain advantages over the single Page 434 U. S. 432 for general commodities shipping. [Footnote 2] Because of these advantages, Raymond would prefer to use doubles on its route between Chicago and Minneapolis. Consolidated would prefer to use doubles on its routes between Chicago, Detroit, and points east, and Minneapolis and points west, as well as on its routes commencing and ending in Milwaukee and Madison. The most direct route for all of this traffic is over Interstate Highways 90 and 94, both of which cross Wisconsin between Illinois and Minnesota. State law allows 65-foot doubles to be operated on interstate highways and access roads in Michigan, Illinois, Minnesota, and all of the States west from Minnesota to Washington through which Interstate Highways 90 and 94 run.Wisconsin law, however, generally does not allow trucks longer than 55 feet to be operated on highways within that State. The key statutory provision is Wis.Stat. § 348.07(1) (1975), which sets a limit of 55 feet on the overall length of a vehicle pulling one trailer. [Footnote 3] Any person operating a single trailer unit of greater length must obtain a permit issued by the State Highway Commission. In addition, § 348.08(1) Page 434 U. S. 433 provides that no vehicle pulling more than one other vehicle shall be operated on a highway without a permit. [Footnote 4]The Commission is authorized to issue various classes of annual permits for the operation of vehicles that do not conform to the above requirements. In particular, it may issue "trailer train" permits for the operation of combinations of more than two vehicles "consisting of truck tractors, trailers, semitrailers or wagons which do not exceed a total length of 100 feet," § 348.27(6). [Footnote 5] The Commission may also "impose Page 434 U. S. 434 such reasonable conditions" and "adopt such reasonable rules" of operation with respect to vehicles operated under permit "as it deems necessary for the safety of travel and protection of the highways," § 348.25(3), including specification of the routes to be used by permittees.The Commission has issued administrative regulations setting forth the conditions under which "trailer train" and other classes of permits will be issued. Although the Commission is empowered by § 348.27(6) to issue "trailer train" permits to operate double trailer trucks up to 100 feet long, its regulations restrict such permits to"the operation of vehicles used for the transporting of municipal refuse or waste, or for the interstate or intrastate operation without load of vehicles in transit from manufacturer or dealer to purchaser or dealer, or for the purpose of repair."Wis.Admin.Code § Hy 30.14(3)(a) (July 1975). "Trailer train" permits also are issued"for the operation of a combination of three vehicles used for the transporting of milk from the point of production to the point of first processing,"§ Hy 30.18(3)(a) (June 1976).IIThe overture to this lawsuit began when Raymond and Consolidated each applied to the appropriate Wisconsin Page 434 U. S. 435 officials under § 348.27(6) for annual permits to operate 65-foot doubles on Interstate Highways 90 and 94 between Illinois and Minnesota and, in Consolidated's case, on short stretches of four-lane divided highways between the interstate highways and freight terminals in Milwaukee and Madison. [Footnote 6] The permits were denied because appellants' proposed operations were not within the narrow scope of the administrative regulations that specify when "trailer train" permits will be issued. Appellants then filed suit in Federal District Court seeking declaratory and injunctive relief on the ground that the regulations barring the proposed operation of 65-foot doubles burden and discriminate against interstate commerce in violation of the Commerce Clause, Art. I, § 8, cl. 3. [Footnote 7] The complaint alleged that the State's refusal to issue the requested permits disrupts and delays appellants' transportation of commodities in interstate commerce; that 65-foot doubles are as safe as, if not safer than, the 55-foot singles that are allowed to operate on Wisconsin highways without permits; and that the maze of statutory and administrative exceptions to the general prohibition against operating vehicles longer than 55 feet results in"'over-length' permits [being] routinely granted to classes of vehicles indistinguishable from those of the Plaintiffs in terms of size, safety, and divisibility of loads. . . ."App. 18.A three-judge District Court was convened pursuant to 28 Page 434 U. S. 436 U.S.C. § 2281. [Footnote 8] After a pretrial conference, the court directed the State to file an amended answer setting forth every justification for its refusal to issue the permits sought, "such as safety, for example." App. 25. The State's amended answer advanced highway safety as its sole justification. Id. at 2729. By agreement of the parties, the case was tried on affidavits, depositions, and exhibits.Appellants presented a great deal of evidence supporting their allegation that 65-foot doubles are as safe as, if not safer than, 55-foot singles when operated on limited-access, four-lane divided highways. For example, the Deputy Director of the Bureau of Motor Carrier Safety, Federal Highway Administration, United States Department of Transportation, testified on deposition that the Bureau's five-year study of the accident experience of selected motor carriers that use both types of trucks showed that doubles are safer than singles in terms of the number of accidents, injuries, and fatalities per 100,000 miles, and in terms of the amount of property damage and number of injuries and fatalities per accident. The deponent's own expert opinion was that doubles are safer because of the articulation between the first and second trailers, which allows greater maneuverability and prevents the back wheels of the second trailer from deviating from the path of the front wheels of the tractor (offtracking) as much as the back wheels of a 55-foot single; because loads typically are distributed more evenly in doubles than in singles; and because doubles typically have better braking capability than singles.Other experts testified that 65-foot doubles brake as well as 55-foot singles, maneuver and track better, are less prone to jackknife, and produce less splash and spray to obscure the vision of drivers in following and passing vehicles. These Page 434 U. S. 437 experts agreed that the difference in the amount of time needed to pass a 55-foot single and a 65-foot double has no appreciable effect on motorist safety on limited-access, four-lane divided highways. Appellants also produced depositions and affidavits of state highway safety officials from 12 of the States where 65-foot doubles are allowed on some or all highways; all shared the opinion that 65-foot doubles are as safe as 55-foot singles. [Footnote 9]The State, for reasons unexplained, made no effort to contradict this evidence of comparative safety with evidence of its own. [Footnote 10] The Chairman of the State Highway Commission, while acknowledging the Commission's statutory authority to issue the permits sought by appellants, testified that the regulations preventing their issuance are not based on an administrative assessment of the safety of 65-foot doubles, and he himself was "not prepared to make a statement relative to the safety of these vehicles." App. 250. The reason for the Commission's adoption of these regulations, according to the Chairman, was its belief that the people of the State did not want more vehicles over 55 feet long on the State's highways. [Footnote 11] The Page 434 U. S. 438 State produced no evidence, nor has it made any suggestion in this Court, that 65-foot doubles are less safe than 55-foot singles because of their extra trailer, a distinguished from their extra length. [Footnote 12]Appellants also produced uncontradicted evidence showing that their operations are disrupted, their costs are raised, and their service is slowed by the challenged regulations. For example, Consolidated ordinarily finds it faster and less expensive to use 65-foot doubles to carry interstate freight originating from or destined for Milwaukee and Madison. To comply with Wisconsin law, however, an interstate double bound for Wisconsin must stop before entering the State and detach one of its two trailers. Consolidated then pulls each trailer separately to the freight terminal in Milwaukee or Madison. Likewise, each trailer of a double outbound from one of those cities must be pulled across the Wisconsin state line separately, at which point they are united into a double trailer combination. Consolidated maintains a crew of drivers in Wisconsin whose sole responsibility is to shuttle second trailers to and from the state line.On routes through Wisconsin between Chicago and Minneapolis, both Consolidated and Raymond are compelled to use 55-foot singles instead of 65-foot doubles because each trailer of a double would have to be pulled by a separate tractor on the portion of the route that is in Wisconsin. On its long east-west routes from Detroit and Chicago to Seattle, Consolidated must divert doubles south of Wisconsin through Missouri and Nebraska in order to avoid Wisconsin's ban. [Footnote 13] Page 434 U. S. 439 These routes would involve a considerably shorter distance if Consolidated's trucks could go through Wisconsin. [Footnote 14] Finally, appellants' evidence demonstrated that Wisconsin routinely allows a great number and variety.of vehicles over 55 feet long to be operated on the State's highways. App. 178-181. The three-judge court ruled against appellants. 417 F. Supp. 1352 (WD Wis.1976) (per curiam). The court found that the Wisconsin regulatory scheme does not discriminate against interstate commerce. Id. at 1356-1358. The court also considered "whether the burden imposed upon interstate commerce outweighs the benefits to the local popul[ace]," id. at 1358, and concluded that it did not. It thought that appellants had not shown that the State's refusal to issue permits for appellants' 65-foot doubles had no relation to highway safety, pointing to the fact that, other things being equal, it takes longer for a motorist to pass a 65-foot truck than a 55-foot truck. Id. at 1359. The court considered the expense imposed on appellants to be "of no material consequence." Id. at 1361. We noted probable jurisdiction. 430 U.S. 914 (1977).IIIAppellants challenge both branches of the District Court's holding. First, they contend that the State's refusal to issue the requested "trailer train" permits under § 348.27(6) burdens interstate commerce in violation of the Commerce Clause because it substantially interferes with the movement of goods in interstate commerce and makes no contribution to highway Page 434 U. S. 440 safety. Second, they argue that § 348.27(4), authorizing issuance of "interplant" permits, see n 5, supra, discriminates against interstate commerce in violation of the Commerce Clause because it allows permits to be issued to carry the products of Wisconsin industries, but not of other States' industries, over Wisconsin highways in trucks longer than 55 feet. We find it necessary to address the second contention only as it bears on the first.By its terms, the Commerce Clause grants Congress the power "[t]o regulate Commerce . . . among the several States. . . ." Long ago it was settled that, even in the absence of a congressional exercise of this power, the Commerce Clause prevents the States from erecting barriers to the free flow of interstate commerce. Cooley v. Board of Wardens, 12 How. 299 (1852); see Great A&P Tea Co. v. Cottrell, 424 U. S. 366, 424 U. S. 370-371 (1976). At the same time, however, it never has been doubted that much state legislation, designed to serve legitimate state interests and applied without discrimination against interstate commerce, does not violate the Commerce Clause even though it affects commerce. H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 336 U. S. 531-532 (1949); See Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 203-206 (1824); id. at 235 (Johnson, J., concurring)."[I]n areas where activities of legitimate local concern overlap with the national interests expressed by the Commerce Clause -- where local and national powers are concurrent -- the Court in the absence of congressional guidance is called upon to make 'delicate adjustment of the conflicting state and federal claims,' H. P. Hood Sons, Inc. v. Du Mond, supra, at 336 U. S. 553 (Black, J., dissenting). . . ."Great AP Tea Co. v. Cottrell, supra, at 424 U. S. 371; see Hunt v. Washington Apple Advertising Comm'n, 432 U. S. 333, 432 U. S. 350 (1977).In this process of "delicate adjustment," the Court has employed various tests to express the distinction between permissible and impermissible impact upon interstate commerce, [Footnote 15] Page 434 U. S. 441 but experience teaches that no single conceptual approach identifies all of the factors that may bear on a particular case. [Footnote 16] Our recent decisions make clear that the inquiry necessarily involves a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce. As the Court stated in Pike v. Bruce Church, Inc., 397 U. S. 137, 397 U. S. 142(1970):"Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U. S. 440, 362 U. S. 443. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will, of course, depend on the nature of the local interest involved, and on whether it Page 434 U. S. 442 could be promoted as well with a lesser impact on interstate activities."Accord, Great A&P Tea Co. v. Cottrell, supra at 424 U. S. 371-372; Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 426 U. S. 804 (1976); see also Hunt v. Washington Apple Advertising Comm'n, supra at 432 U. S. 350.In the instant case, appellants do not dispute that a State has a legitimate interest in regulating motor vehicles using its roads in order to promote highway safety. Nor do they contend that federal regulation has preempted state regulation of truck length or configuration. [Footnote 17] They argue, however, that the burden imposed upon interstate commerce by the Wisconsin regulations challenged here is, in the language of Pike v. Bruce Church, Inc., "clearly excessive in relation to the putative local benefits." Appellants contend that the regulations were shown by uncontradicted evidence to make no contribution to highway safety, while imposing a burden on interstate commerce that is substantial in terms of expense and delay. They analogize this case to Bibb v. Navajo Freight Lines, 359 U. S. 520 (1959), where the Court invalidated an Illinois law, defended on the ground that it promoted highway safety, that required trailers of trucks driven within Illinois to be equipped with contour mudguards.The State replies that the general rule of Pike is not applicable to a State's regulation of motor vehicles in the promotion of safety. It contends that we should be guided, instead, by South Carolina Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177 (1938), which upheld over Commerce Clause objections a state law that set stricter limitations on truck width and weight than did surrounding States' laws. The State Page 434 U. S. 443 emphasizes that Barnwell Bros. applied a "rational relation" test, rather than a "balancing" test, and argues that its regulations bear a rational relation to highway safety: longer trucks take longer to pass or be passed than shorter trucks.We acknowledge, as did the Court in Bibb, that there is language in Barnwell Bros."which, read in isolation from . . . later decisions . . . , would suggest that no showing of burden on interstate commerce is sufficient to invalidate local safety regulations in absence of some element of discrimination against interstate commerce."359 U.S. at 359 U. S. 528-529. But Bibb rejected such a suggestion by stating the test to be applied to state highway regulation in terms similar in principle to the subsequent formulation in Pike v. Bruce Church, Inc.:"Unless we can conclude on the whole record that 'the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it' . . . , we must uphold the statute."359 U.S. at 359 U. S. 524, quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 325 U. S. 775-776 (1945). Thus, we cannot accept the State's contention that the inquiry under the Commerce Clause is ended without a weighing of the asserted safety purpose against the degree of interference with interstate commerce.Nevertheless, it also is true that the Court has been most reluctant to invalidate under the Commerce Clause "state legislation in the field of safety where the propriety of local regulation has long been recognized.'" Pike v. Bruce Church, Inc., supra at 397 U. S. 143, quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, supra at 325 U. S. 796 (Douglas, J., dissenting). In no field has this deference to state regulation been greater than that of highway safety regulation. See, e.g., Hendrick v. Maryland, 235 U. S. 610 (1915); Sproles v. Binford, 286 U.S. Page 434 U. S. 444 374 (1932); Maurer v. Hamilton, 309 U. S. 598 (1940); Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1940). [Footnote 18] Thus, those who would challenge state regulations said to promote highway safety must overcome a "strong presumption of [their] validity." Bibb, supra, at 359 U. S. 524.Despite the strength of this presumption, we are persuaded by the record in this case that the challenged regulations unconstitutionally burden interstate commerce. As we have shown, appellants produced a massive array of evidence to disprove the State's assertion that the regulations make some contribution to highway safety. The State, for its part, virtually defaulted in its defense of the regulations as a safety measure. Both it and the District Court were content to assume that the regulations contribute to highway safety because appellants' 65-foot doubles take longer to pass or be passed than the 55-foot singles. Yet appellants produced uncontradicted evidence that the difference in passing time does not pose an appreciable threat to motorists traveling on limited access, four-lane divided highways. [Footnote 19] They also Page 434 U. S. 445 showed that the Highway Commission routinely allows many other vehicles 55 feet or longer to use the State's highways. In short, the State's assertion that the challenged regulations contribute to highway safety is rebutted by appellants' evidence and undercut by the maze of exemptions from the general truck length limit that the State itself allows. [Footnote 20]Moreover, appellants demonstrated, again without contradiction, that the regulations impose a substantial burden on the interstate movement of goods. The regulations substantially increase the cost of such movement, a fact which is not, as the District Court thought, entirely irrelevant. [Footnote 21] In addition, the regulations slow the movement of goods in interstate commerce by forcing appellants to haul doubles across the State separately, to haul doubles around the State altogether, or to incur the delays caused by using singles instead of doubles to pick up and deliver goods. See Bibb, 359 U.S. at 359 U. S. 527. Finally, the regulations prevent appellants from accepting interline transfers of 65-foot doubles for movement through Wisconsin from carriers that operate only in the 33 States where the doubles are legal. See id. at 359 U. S. 527-528. [Footnote 22] In our Page 434 U. S. 446 view, the burden imposed on interstate commerce by Wisconsin's regulations is no less than that imposed by the statute invalidated in Bibb. [Footnote 23]One other consideration, although not decisive, lends force to our conclusion that the challenged regulations cannot stand. As we have noted, Wisconsin's regulatory scheme contains a great number of exceptions to the general rule that vehicles over 55 feet long cannot be operated on highways within the State. At least one of these exceptions discriminates on its face in favor of Wisconsin industries and against the industries of other States, [Footnote 24] and there are indications in the record that a Page 434 U. S. 447 number of the other exceptions, although neutral on their face, were enacted at the instance of, and primarily benefit, important Wisconsin industries. Viewed realistically, these exceptions may be the product of compromise between forces within the State that seek to retain the State's general truck-length limit, and industries within the State that complain that the general limit is unduly burdensome. Exemptions of this kind, however, weaken the presumption in favor of the validity of the general limit, because they undermine the assumption that the State's own political processes will act as a check on local regulations that unduly burden interstate commerce. See n 18, supra.IVOn this record, we are persuaded that the challenged regulations violate the Commerce Clause because they place a substantial burden on interstate commerce and they cannot be said to make more than the most speculative contribution to highway safety. Our holding is a narrow one, for we do not decide whether laws of other States restricting the operation of trucks over 55 feet long, or of double trailer trucks, would be upheld if the evidence produced on the safety issue were not so overwhelmingly one-sided as in this case. [Footnote 25] The State of Page 434 U. S. 448 Wisconsin has failed to make even a colorable showing that its regulations contribute to highway safety. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtRaymond Motor Transportation, Inc. v. Rice, 434 U.S. 429 (1978)Raymond Motor Transportation, Inc. v. RiceNo. 76-558Argued November 8-9, 1977Decided February 21, 1978434 U.S. 429SyllabusWisconsin statutes, as a general rule, do not allow trucks longer than 55 feet or pulling more than one other vehicle to be operated on highways within that State without a permit. Implementing regulations set forth the conditions under which "trailer train" and other classes of permits will be issued, and contain a great number of exceptions to the general rule. Appellant motor carriers were denied permits to operate 65-foot double trailer units on certain interstate highways in Wisconsin on the ground that their proposed operations were not within the narrow scope of the regulations specifying when "trailer train" permits will be issued. Appellants then filed suit in Federal District Court seeking declaratory and injunctive relief on the ground that the regulations barring their operation of 65-foot doubles burdened and discriminated against interstate commerce in violation of the Commerce Clause. At the trial, appellants presented extensive, uncontradicted evidence that the 65-foot doubles are as safe as, if not safer than, 55-foot singles when operated on limited-access, four-lane divided highways, and also presented uncontradicted evidence that their operations are disrupted, their costs raised, and their service slowed by the challenged regulations because they are forced to haul doubles across the State separately or around the State or to incur delays caused by using singles, instead of doubles, to pick up and deliver goods, and are prevented from accepting interline transfers of 65-foot doubles. In addition, appellants' evidence showed that Wisconsin routinely allows a great number and variety of vehicles over 55 feet long to operate on state highways. A three-judge court ruled against appellants.Held: On the record, the challenged regulations violate the Commerce Clause because they place a substantial burden on interstate commerce and make no more than the most speculative contribution to highway safety. The great number of exceptions to the general 55-foot rule, and especially those that discriminate in favor of local industry, weaken the presumption of validity in favor of the general limit because they undermine the assumption that the State's Page 434 U. S. 430 own political processes will act as a check on local regulations that unduly burden interstate commerce. Pp. 434 U. S. 439-448.417 F. Supp. 1352, reversed and remanded.POWELL, J., delivered the opinion of the Court, in which all other Members joined except STEVENS, J., who took no part in the consideration or decision of the case. BLACKMUN, J., filed a concurring opinion, in which BURGER, C.J., and BRENNAN and REHNQUIST, JJ., joined, post, p. 434 U. S. 448.

1975_75-377

STEVENS, J., filed a dissenting opinion, in which BRENNAN, STEWART, and MARSHALL, JJ., joined, post, p. 427 U. S. 632.MR. JUSTICE BLACKMUN delivered the opinion of the Court.The Commonwealth of Massachusetts long ago established a "two-tier" system of trial courts for certain Page 427 U. S. 620 crimes. A person accused of such a crime is tried in the first instance in the lower tier. No trial by jury is available there. If convicted, the defendant may take a timely "appeal" to the second tier and, if he so desires, have a trial de novo by jury. The issues here presented are (1) whether, where the Constitution guarantees an accused a jury trial, it also requires that he be permitted to exercise that right at the first trial in the lower tier, and (2) whether the Massachusetts procedure violates the Double Jeopardy Clause of the Fifth Amendment made applicable to the States by the Fourteenth. Benton v. Maryland, 395 U. S. 784 (1969).IMassachusetts is one of several States having a two-tier system of trial courts for criminal cases. See Colten v. Kentucky, 407 U. S. 104, 407 U. S. 112 n. 4 (1972). Some States provide a jury trial in each tier; others provide a jury only in the second tier, but allow an accused to bypass the first; and still others, like Massachusetts, do not allow an accused to avoid a trial of some sort at the first tier before he obtains a trial by jury at the second.The first tier of the Massachusetts system is composed of district courts of the State's several counties, and the Municipal Court of the city of Boston. Mass.Gen.Laws Ann. c. 218, § 1 (Supp. 1976-1977). These courts have jurisdiction over violations of municipal ordinances, over misdemeanors except criminal libel, over felonies having a maximum potential sentence of not more than five years, and over specified felonies having a maximum potential sentence in excess of five years. § 26.A criminal proceeding in the first-tier court is begun with the issuance of a complaint. An accused then has two statutory alternatives. He may plead guilty at arraignment and be sentenced by the court. If he is dissatisfied Page 427 U. S. 621 with the sentence, he may appeal. C. 278, § 18. In that case, however, the accused is not entitled to a trial de novo respecting his guilt or innocence; he is limited, instead, to a challenge to his sentence. Commonwealth v. Crapo, 212 Mass. 209, 98 N.E. 702 (1912).If, on the other hand, the accused pleads not guilty in the first tier, he is tried by the judge without a jury. An acquittal there terminates the proceeding. After a judgment of guilty, however, he may appeal either to the superior court, where a 12-person jury is available, c. 278, §§ 2 and 18 (1972 and Supp. 1976-1977), or to the jury division of the district court, where a jury of six is available. C. 218, § 27A; c. 278, § 18 (Supp. 1976-1977). See also Mann v. Commonwealth, 359 Mass. 661, 663-664, 271 N.E.2d 331, 333 (1971); Jones v. Robbins, 74 Mass. 329, 336, 341-342 (1857); Mass.Gen.Laws Ann. c. 278, § 18A (1972).Unlike the two-tier Kentucky system under consideration in Colten v. Kentucky, supra, an accused in Massachusetts does not avoid trial in the first instance by pleading guilty. Nevertheless, he achieves essentially the same result by an established, informal procedure known as "admitting sufficient findings of fact." Tr. of Oral Arg. 31. See also id. at 13, 32-33. This procedure is used "[i]f the defendant wishes to waive a trial in the District Court and save his rights for a trial in the Superior Court on the appeal." 30 K. Smith, Massachusetts Practice, Criminal Practice and Procedure § 754 (1970). The trial court then hears only enough evidence to assure itself that there is probable cause to believe that the defendant has committed the offense with which he is charged. The court, however, does make a finding of guilt and enter a judgment of conviction.Once a person convicted in the district Court indicates Page 427 U. S. 622 that he is going to appeal, [Footnote 1] his conviction is vacated. He may suffer adverse collateral consequences from the conviction, such as revocation of parole or of his driver's license. Mass.Gen.Laws Ann. c. 90, §§ 24(1)(b) and (c) (1969 and Supp. 1976-1977). See Almeida v. Lucey, 372 F. Supp. 109 (Mass.), summarily aff'd, 419 U.S. 806 (1974); Boyle v. Registrar of Motor Vehicles, ___ Mass. ___, 331 N.E.2d 52, 53 (1975). Moreover, if the accused"fails to enter and prosecute his appeal, he shall be defaulted on his recognizance and the superior court may impose sentence upon him for the crime of which he was convicted, as if he had been convicted in said court."Mass.Gen.Laws Ann. c. 278, § 24 (1972).If an accused does appeal and does not default, he may, upon request, be tried de novo by a jury. If, again, he is found guilty, he may appeal, as of right, to the Massachusetts Appeals Court or to the Supreme Judicial Court, where he may raise both factual and legal claims of error. §§ 28, 28B (1972).IIOn February 1, 1974, in the District Court of Northern Norfolk, appellant Ludwig was charged with operating a Page 427 U. S. 623 motor vehicle "negligently . . . so that the lives and safety of the public might be endangered," App 3a, in violation of Mass.Gen.Laws Ann. c. 90, § 24(2)(a) (Supp. 1976-1977). This offense carries a maximum penalty of a fine of § 200, or two years' imprisonment, or both. On the same day, Ludwig was arraigned and pleaded not guilty.At the commencement of trial on March 11, appellant moved for a "speedy trial by jury," citing the Fifth and Sixth Amendments. The motion was denied, and, after a brief trial, the court adjudged Ludwig guilty and imposed a fine of § 20. Thereafter, appellant asserted his statutory right to a trial de novo before a six-man jury in the District Court.In the de novo proceeding, appellant filed a "motion to dismiss" on the grounds that he had been deprived of his federal constitutional right to a speedy jury trial in the first instance, and that he had been subjected to double jeopardy. App. 5a-6a. The motion was denied. At the second trial on April 5, appellant waived a jury and, after trial by the court, again was adjudged guilty, and again was fined § 20.On appeal, the Supreme Judicial Court of Massachusetts affirmed the judgment of conviction. ___ Mass. ___, 330 N.E.2d 467 (1975). Relying on its earlier decision in Whitmarsh v. Commonwealth, 366 Mass. 212, 316 N.E.2d 610 (1974), appeal dismissed, 421 U.S. 957 (1975), the court held that the denial of appellant's request to be tried by a jury at his first trial did not violate his right to a speedy trial or to a trial by jury as guaranteed by the Sixth and Fourteenth Amendments, and that the Massachusetts procedure did not violate the constitutional prohibition against putting a person twice in jeopardy.The present appeal to this Court followed. We noted Page 427 U. S. 624 probable jurisdiction, 423 U.S. 945 (1975), in order to consider the issues recited in the opening paragraph of this opinion. [Footnote 2] See Costarelli v. Massachusetts, 421 U. S. 193 (1975).IIIThe standard against which we judge whether the Massachusetts two-tier system violates an individual's constitutional right to trial by jury is the Fourteenth Amendment's guarantee that no person may be deprived "of life, liberty, or property, without due process of law." In giving content to this sweeping proscription in the jury trial context, the Court in the past has considered two distinct issues: whether a State is ever obliged to grant an accused a jury trial, and whether certain features of the 18th century common law jury are inherent in the right.In Duncan v. Louisiana, 391 U. S. 145 (1968), the Court resolved the first issue by reference to, and in the light of, the Sixth Amendment. It held that the right to a jury trial in a "serious" criminal case was "fundamental to the American scheme of justice." Id. at 391 U. S. 149. Accordingly, it held that the"Fourteenth Amendment guarantees a right of jury trial in all criminal cases which -- were they to be tried in a federal court -- would come within the Sixth Amendment's guarantee."Ibid. Only when an accused is charged with a "petty" offense, usually defined by reference to the maximum Page 427 U. S. 625 punishment that might be imposed, does the Constitution permit the Federal Government and the State to deprive him of his liberty without affording him an opportunity to have his guilt determined by a jury. Baldwin v. New York, 399 U. S. 66 (1970) (plurality opinion).In Williams v. Florida, 399 U. S. 78 (1970), and in Apodaca v. Oregon, 406 U. S. 404 (1972) (plurality opinion), the Court dealt with the second issue by considering whether particular features of the 18th century common law jury are essential, or merely incidental, to the central purpose of the jury trial requirement. The jury, it was observed, acts as "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.'" Williams v. Florida, 399 U.S. at 399 U. S. 100, quoting Duncan v. Louisiana, 391 U.S. at 391 U. S. 156. The Court held in Williams that a jury of 12 is not required in order that this central purpose be served. Similar analysis led to the holding in Apodaca that the jury's verdict need not be unanimous. What is important is that the verdict reflect the common sense judgment of a group of laymen; this it may do even if it is only a majority verdict,"as long as [the jury] consists of a group of laymen representative of a cross-section of the community who have the duty and the opportunity to deliberate, free from outside attempts at intimidation, on the question of a defendant's guilt."406 U.S. at 406 U. S. 410-411.These two issues are not again in controversy in the present case. It is indisputable that the Massachusetts two-tier system does afford an accused charged with a serious offense the absolute right to have his guilt determined by a jury composed and operating in accordance with the Constitution. Within the system, the jury serves its function of protecting against prosecutorial and Page 427 U. S. 626 judicial. misconduct. It does so directly at the second tier of the Massachusetts system, and it may also have an indirect effect on first-tier trials."Even where defendants are satisfied with bench trials, the right to a jury trial very likely serves its intended purpose of making judicial or prosecutorial unfairness less likely."Duncan v. Louisiana, 391 U.S. at 391 U. S. 158.This is not to say that we are unaware of a remote possibility that an accused in Massachusetts may be faced at his first trial with an overzealous prosecutor and a judge who is either unable or unwilling to control him. But in such a case, he may protect himself from questionable incarceration by appealing, and insisting upon a trial by jury.Even though the Massachusetts procedure does not deprive an accused of his Fourteenth Amendment right to a jury trial, the question remains whether it unconstitutionally burdens the exercise of that right: (1) by imposing the financial cost of an additional trial; (2) by subjecting an accused to a potentially harsher sentence if he seeks a trial de novo in the second tier; and (3) by imposing the increased psychological and physical hardships of two trials.Appellant charges that the Massachusetts system financially burdens the accused by requiring that he twice defend himself and by causing a loss of wages if he is employed. Although these burdens are not unreal, and although they may, in an individual case, impose a hardship, we conclude that they do not impose an unconstitutional burden on the exercise of the right to a trial by jury. In Massachusetts, the accused may enjoy his right to trial by jury expeditiously by invoking the above-described procedure of "admitting sufficient findings of fact." He, therefore, need not pursue, in any real sense, a defense at the lower tier. The accused, however, Page 427 U. S. 627 may utilize that proceeding fruitfully as a discovery tool and find the strengths and the weaknesses of the State's case against him. And, of course, if ar accused is indigent, the State is required to furnish him counsel without cost before he may be deprived of his liberty. Argersinger v. Hamlin, 407 U. S. 25 (1972).The question whether the possibility of a harsher sentence at the second tier impermissibly burdens the exercise of an accused's right to a trial by jury is controlled by the decisions in North Carolina v. Pearce, 395 U. S. 711 (1969), and Colten v. Kentucky, 407 U. S. 104 (1972). These cases establish that the mere possibility of a harsher sentence does not unconstitutionally burden an accused's right to a trial by jury. In Pearce, a new trial was sought, by taking an appeal, because of error at the first trial. In Colten, a new trial was sought in order to secure more ample safeguards available at the higher tier. We see no need to reach a different result here, where a new trial is sought in order to obtain a jury. [Footnote 3] Due process is violated only by the vindictive imposition of an increased sentence. The Court in Colten held that the danger of such sentencing does not inhere in the two-tier system. [Footnote 4] 407 U.S. at 407 U. S. 112-119. Page 427 U. S. 628We are not oblivious to the adverse psychological and physical effects that delay in obtaining the final adjudication of one's guilt or innocence may engender. Protection against unwarranted delay, with its concomitant side effects on the accused, of course, is primarily the function of the Speedy Trial Clause of the Sixth Amendment, made applicable to the States by means of the Fourteenth. Klopfer v. North Carolina, 386 U. S. 213 (1967). Appellant does not continue to press the contention, Page 427 U. S. 629 made below, that he was denied his constitutional right to a speedy trial. Further, it is nearly always true that an accused may obtain a faster adjudication of his guilt or innocence by waiving a jury trial even in those States where he may have one in the first instance. No one has seriously charged, however, that the fact that trials by jury are not scheduled so quickly as trials before a judge impermissibly burdens the constitutional right to trial by jury. Finally we are uncertain whether the delay in obtaining a jury trial is increased by the de novo procedure or decreased. Appellant has not presented any evidence to show that there is a greater delay in obtaining a jury in Massachusetts than there would be if the Commonwealth abandoned its two-tier system. We are reluctant to attribute to Massachusetts a perverse determination to maintain an inefficient system whose very purpose is to increase efficiency.Our disposition of this case does not require us to disturb the holding in Callan v. Wilson, 127 U. S. 540 (1888). In Callan, this Court considered the validity of a District of Columbia two-tier trial system that provided for trial by jury only in the second tier. The Court announced:"Except in that class or grade of offences called petty offences, which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guarantee of an impartial jury to the accused in a criminal prosecution, conducted either in the name, or by or under the authority of, the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offence charged."Id. at 127 U. S. 557.Reconsideration of Callan is not required here for two reasons. First, as the Court there recognized, the sources Page 427 U. S. 630 of the right to jury trial in the federal courts are several, and include Art. III, § 2, cl. 3, of the Constitution. That provision requires, in pertinent part, that "[t]he Trial of all Crimes . . . shall be by Jury." This language, which might be read as prohibiting, in the absence of a defendant's consent, a federal trial without a jury is, of course, not applicable to the States. Second, to the extent that the decision in Callan may have rested on a determination that the right to trial by jury in a serious criminal case was unduly burdened by a requirement that an accused first be tried without a jury, it is not controlling here. Unlike the District of Columbia system, which apparently required that an accused be "fully tried" in the first tier, 127 U.S. at 127 U. S. 557, Massachusetts permits an accused to circumvent trial in the first tier by admitting to sufficient findings of fact.The modes of exercising federal constitutional rights have traditionally been left, within limits, to state specification. In this case, Massachusetts absolutely guarantees trial by jury to persons accused of serious crimes, and the manner it has specified for exercising this right is fair and not unduly burdensome.IVThe final contention is that the Massachusetts procedure violates the Double Jeopardy Clause. The basis of appellant's contention is that "the de novo procedure forces the accused to the risk' of two trials." Brief for Appellant 66. Appellee responds by quoting from North Carolina v. Pearce, 395 U.S. at 395 U. S. 719-720:"At least since 1896, when United States v. Ball, 163 U. S. 662, was decided, it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside."(Emphasis in original.) Brief for Appellee 31. Page 427 U. S. 631We agree that there is no double jeopardy violation posed by the Massachusetts system. The history of the Double Jeopardy Clause and its interpretation were canvassed by the Court only last Term in United States v. Wilson, 420 U. S. 332 (1975); United States v. Jenkins, 420 U. S. 358 (1975); and Serfass v. United States, 420 U. S. 377 (1975), and need not be repeated here. It is sufficient to say:"Although the form and breadth of the prohibition varied widely, the underlying premise was generally that a defendant should not be twice tried or punished for the same offense. . . . Writing in the 17th century, Lord Coke described the protection afforded by the principle of double jeopardy as a function of three related common law pleas: autrefois acquit, autrefois convict, and pardon."United States v. Wilson, 420 U.S. at 420 U. S. 339-340. In this case, only the concept represented by the common law plea of autrefois convict is presently at issue. The Massachusetts system presents no danger of prosecution after an accused has been pardoned; nor is there any doubt that acquittal at the first tier precludes reprosecution. Instead, the argument appears to be that, because the appellant has been placed once in jeopardy and convicted, the State may not retry him when he informs the trial court of his decision to "appeal" and to secure a trial de novo.Appellant's argument is without substance. The decision to secure a new trial rests with the accused alone. A defendant who elects to be tried de novo in Massachusetts is in no different position than is a convicted defendant who successfully appeals on the basis of the trial record and gains a reversal of his conviction and a remand of his case for a new trial. Under these Page 427 U. S. 632 circumstances, it long has been clear that the State may reprosecute. United States v. Ball, 163 U. S. 662 (1896). The only difference between an appeal on the record and an appeal resulting automatically in a new trial is that a convicted defendant in Massachusetts may obtain a "reversal" and a new trial without assignment of error in the proceedings at his first trial. Nothing in the Double Jeopardy Clause prohibits a State from affording a defendant two opportunities to avoid conviction and secure an acquittal.The judgment is affirmed.It is so ordered

U.S. Supreme CourtLudwig v. Massachusetts, 427 U.S. 618 (1976)Ludwig v. MassachusettsNo. 75-377Argued April 28, 1976Decided June 30, 1976427 U.S. 618SyllabusUnder Massachusetts' two-tier court system, a person accused of certain crimes is tried in the first instance in the lower tier, where no trial by jury is available. If convicted, he may appeal to the second tier, and, if he was convicted after a proceeding on a not-guilty plea, or by "admitting sufficient findings of fact," he is entitled to a trial de novo by jury in the second tier. Appellant, after he pleaded not guilty and after his motion for a jury trial was denied, was tried and convicted in a first-tier court. He then appealed to the second tier, and after unsuccessfully moving to dismiss on grounds that he had been deprived of his constitutional right to a speedy jury trial in the first instance and had been subjected to double jeopardy, he waived a jury trial and was again convicted. The Massachusetts Supreme Judicial Court affirmed, holding that the denial of appellant's request to be tried by a jury at his first trial did not violate his constitutional right to a speedy trial or to a trial by jury, and that the Massachusetts procedure did not violate the constitutional prohibition against putting a person twice in jeopardy.Held:1. The Massachusetts two-tier court system does not deprive an accused of his Fourteenth Amendment right to a jury trial, but absolutely guarantees trial by jury to persons accused of serious crimes, and the manner specified for exercising this right is fair and not unduly burdensome. Callan v. Wilson, 127 U. S. 540, distinguished. Pp. 427 U. S. 624-630.(a) Within the system, the jury serves its function of protecting an accused from prosecutorial and judicial misconduct. Pp. 427 U. S. 625-626.(b) That an accused may undertake the financial cost of an additional trial does not unconstitutionally burden the right to a jury trial because he is not required to pursue a defense at the lower tier. Moreover, if an accused is indigent, the State is required to furnish him counsel without cost. Pp. 427 U. S. 626-627.(c) Nor does the possibility of a harsher sentence at the second tier impermissibly burden the accused's right to a jury Page 427 U. S. 619 trial. North Carolina v. Pearce, 395 U. S. 711; Colten v. Kentucky, 407 U. S. 104. P. 427 U. S. 627.(d) Where appellant no longer urges that he was denied his constitutional right to a speedy trial, and there is no evidence that there is a greater delay in obtaining a jury in Massachusetts than there would be if the two-tier system were abandoned, it cannot properly be contended that the system unconstitutionally burdens the right to a jury trial by imposing the increased psychological and physical hardships of two trials. Pp. 427 U. S. 628-629.2. The Massachusetts procedure does not violate the Double Jeopardy Clause of the Fifth Amendment made applicable to the States by the Fourteenth, and appellant's claim that, because he had been placed once in jeopardy and convicted, the State may not retry him when he decides to "appeal" and secure a trial de novo, is without merit. An accused who elects to be tried de novo is in no different position from a convicted defendant who successfully appeals on the basis of the trial record and gains a reversal of his conviction and a remand for a new trial. Nothing in the Double Jeopardy Clause prohibits a State from affording a defendant two opportunities to avoid conviction and secure an acquittal. Pp. 427 U. S. 630-632.___ Mass. ___, 330 N.E.2d 467, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 427 U. S. 632. STEVENS, J., filed a dissenting opinion, in which BRENNAN, STEWART, and MARSHALL, JJ., joined, post, p. 427 U. S. 632.

1994_93-723

tation, shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U. S. C. § 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement.Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii.These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U. S. C. §§ 2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U. S. C. § 371.1 Evidence at trial suggested that Gottesman had full awareness of Lords' underage performances. United States v. Gottesman, No. CR 88-295KN, Findings of Fact' 7 (CD Cal., Sept. 20, 1989), App. to Pet. for Cert. 39a ("Defendants knew that Traci Lords was underage when she made the films defendant's [sic] transported or shipped in interstate commerce"). The District Court convicted respondents of all three counts. On appeal, Gottesman argued, inter alia, that the Act was facially unconstitutional because it lacked a necessary scien-1 The indictment also charged six counts of violating federal obscenity statutes and two racketeering counts involving the same. Respondents were acquitted of these charges.67ter requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F.2d 1066 (CA9), cert. denied, 498 U. S. 826 (1990). In that case, the Ninth Circuit had held § 2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction.On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found § 2252 facially unconstitutional. The court first held that 18 U. S. C. § 2256 met constitutional standards in setting the age of majority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. 982 F.2d 1285, 1288-1289 (CA9 1992). It then discussed § 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. 982 F. 2d, at 1290, citing Smith v. California, 361 U. S. 147 (1959); New York v. Ferber, 458 U. S. 747 (1982); and Hamling v. United States, 418 U. S. 87 (1974). The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. 982 F. 2d, at 1291. Because the court found the statute did not require such a showing, it reversed respondents' convictions. We granted certiorari, 510 U. S. 1163 (1994), and now reverse.Title 18 U. S. C. § 2252 (1988 ed. and Supp. V) provides, in relevant part:68"(a) Any person who-"(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if-"(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and"(B) such visual depiction is of such conduct;"(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if-"(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and"(B) such visual depiction is of such conduct;"shall be punished as provided in subsection (b) of this section."The critical determination which we must make is whether the term "knowingly" in subsections (1) and (2) modifies the phrase "the use of a minor" in subsections (l)(A) and (2)(A). The most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term "knowingly" modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word "knowingly" would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. But we do not think this is the end of the matter, both because of anomalies which69result from this construction, and because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.If the term "knowingly" applies only to the relevant verbs in § 2252-transporting, shipping, receiving, distributing, and reproducing-we would have to conclude that Congress wished to distinguish between someone who knowingly transported a particular package of film whose contents were unknown to him, and someone who unknowingly transported that package. It would seem odd, to say the least, that Congress distinguished between someone who inadvertently dropped an item into the mail without realizing it, and someone who consciously placed the same item in the mail, but was nonetheless unconcerned about whether the person had any knowledge of the prohibited contents of the package.Some applications of respondents' position would produce results that were not merely odd, but positively absurd. If we were to conclude that "knowingly" only modifies the relevant verbs in § 2252, we would sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit material. For instance, a retail druggist who returns an uninspected roll of developed film to a customer "knowingly distributes" a visual depiction and would be criminally liable if it were later discovered that the visual depiction contained images of children engaged in sexually explicit conduct. Or, a new resident of an apartment might receive mail for the prior resident and store the mail unopened. If the prior tenant had requested delivery of materials covered by § 2252, his residential successor could be prosecuted for "knowing receipt" of such materials. Similarly, a Federal Express courier who delivers a box in which the shipper has declared the contents to be "film" "knowingly transports" such film. We do not assume that Congress, in passing laws, intended such results. Public Citi-70zen v. Department of Justice, 491 U. S. 440, 453-455 (1989); United States v. Turkette, 452 U. S. 576, 580 (1981).Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them. The landmark opinion in Morissette v. United States, 342 U. S. 246 (1952), discussed the commonlaw history of mens rea as applied to the elements of the federal embezzlement statute. That statute read: "Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States ... [s]hall be fined." 18 U. S. C. § 641, cited in Morissette, 342 U. S., at 248, n. 2. Perhaps even more obviously than in the statute presently before us, the word "knowingly" in its isolated position suggested that it only attached to the verb "converts," and required only that the defendant intentionally assume dominion over the property. But the Court used the background presumption of evil intent to conclude that the term "knowingly" also required that the defendant have knowledge of the facts that made the taking a conversion-i. e., that the property belonged to the United States. Id., at 271. See also United States v. United States Gypsum Co., 438 U. S. 422, 438 (1978) ("[F]ar more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement").Liparota v. United States, 471 U. S. 419 (1985), posed a challenge to a federal statute prohibiting certain actions with respect to food stamps. The statute's use of "knowingly" could be read only to modify "uses, transfers, acquires, alters, or possesses" or it could be read also to modify "in any manner not authorized by [the statute]." Noting that neither interpretation posed constitutional problems, id., at 424, n. 6, the Court held the scienter requirement applied to71both elements by invoking the background principle set forth in Morissette. In addition, the Court was concerned with the broader reading which would "criminalize a broad range of apparently innocent conduct." 471 U. S., at 426. Imposing criminal liability on an unwitting food stamp recipient who purchased groceries at a store that inflated its prices to such purchasers struck the Court as beyond the intended reach of the statute.The same analysis drove the recent conclusion in Staples v. United States, 511 U. S. 600 (1994), that to be criminally liable a defendant must know that his weapon possessed automatic firing capability so as to make it a machinegun as defined by the National Firearms Act. Congress had not expressly imposed any mens rea requirement in the provision criminalizing the possession of a firearm in the absence of proper registration. 26 U. S. C. § 5861(d). The Court first rejected the argument that the statute described a public welfare offense, traditionally excepted from the background principle favoring scienter. Morissette, supra, at 255. The Court then expressed concern with a statutory reading that would criminalize behavior that a defendant believed fell within "a long tradition of widespread lawful gun ownership by private individuals." Staples, 511 U. S., at 610. The Court also emphasized the harsh penalties attaching to violations of the statute as a "significant consideration in determining whether the statute should be construed as dispensing with mens rea." Id., at 616.Applying these principles, we think the Ninth Circuit's plain language reading of § 2252 is not so plain. First, § 2252 is not a public welfare offense. Persons do not harbor settled expectations that the contents of magazines and film are generally subject to stringent public regulation. In fact, First Amendment constraints presuppose the opposite view. Rather, the statute is more akin to the common-law offenses against the "state, the person, property, or public morals," Morissette, supra, at 255, that presume a scienter require-72ment in the absence of express contrary intent.2 Second, Staples' concern with harsh penalties looms equally large respecting § 2252: Violations are punishable by up to 10 years in prison as well as substantial fines and forfeiture. 18 U. S. C. §§ 2252(b), 2253, 2254. See also Morissette, supra, at 260.Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct. Staples held that the features of a gun as technically described by the firearm registration Act was such an element. Its holding rested upon "the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items." Staples, supra, at 619. Age of minority in § 2252 indisputably possesses the same status as an elemental fact because nonobscene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. Alexander v. United States, 509 U. S. 544, 549-550 (1993); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989); FW/PBS, Inc. v. Dallas, 493 U. S. 215, 224 (1990); Smith v. California, 361 U. S., at 152.3 In the light of these2 Morissette's treatment of the common-law presumption of mens rea recognized that the presumption expressly excepted "sex offenses, such as rape, in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent." 342 U. S., at 251, n. 8. But as in the criminalization of pornography production at 18 U. S. C. § 2251, see infra, at 76, n. 5, the perpetrator confronts the underage victim personally and may reasonably be required to ascertain that victim's age. The opportunity for reasonable mistake as to age increases significantly once the victim is reduced to a visual depiction, unavailable for questioning by the distributor or receiver. Thus we do not think the common-law treatment of sex offenses militates against our construction of the present statute.3 In this regard, age of minority is not a "jurisdictional fact" that enhances an offense otherwise committed with an evil intent. See, e. g., United States v. Feola, 420 U. S. 671 (1975). There, the Court did not73decisions, one would reasonably expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving adults. Therefore, the age of the performers is the crucial element separating legal innocence from wrongful conduct.The legislative history of the statute evolved over a period of years, and perhaps for that reason speaks somewhat indistinctly to the question whether "knowingly" in the statute modifies the elements of subsections (l)(A) and (2)(A)-that the visual depiction involves the use of a minor engaging in sexually explicit conduct-or merely the verbs "transport or ship" in subsection (1) and "receive or distribute ... [or] reproduce" in subsection (2). In 1959, we held in Smith v. California, supra, that a California statute that dispensed with any mens rea requirement as to the contents of an obscene book would violate the First Amendment. Id., at 154. When Congress began dealing with child pornography in 1977, the content of the legislative debates suggest that it was aware of this decision. See, e. g., 123 Congo Rec. 30935 (1977) ("It is intended that they have knowledge of the type of material ... proscribed by this bill. The legislative history should be clear on that so as to remove any chance it will lead into constitutional problems"). Even if that were not the case, we do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court. Yates v. United States, 354 U. S. 298, 319 (1957) ("In [construing the statute] we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked"). When first passed, § 2252 pun-require knowledge of "jurisdictional facts" -that the target of an assault was a federal officer. Criminal intent serves to separate those who understand the wrongful nature of their act from those who do not, but does not require knowledge of the precise consequences that may flow from that act once aware that the act is wrongful. Id., at 685. Cf. Hamling v. United States, 418 U. S. 87, 120 (1974) (knowledge that the materials at issue are legally obscene not required).74ished one who "knowingly transports or ships in interstate or foreign commerce or mails, for the purpose of sale or distribution for sale, any obscene visual or print medium" if it involved the use of a minor engaged in sexually explicit conduct. Pub. L. 95-225, 92 Stat. 7 (emphasis added). Assuming awareness of Smith, at a minimum, "knowingly" was intended to modify "obscene" in the 1978 version.In 1984, Congress amended the statute to its current form, broadening its application to those sexually explicit materials that, while not obscene as defined by Miller v. California, 413 U. S. 15 (1973),4 could be restricted without violating the First Amendment as explained by New York v. Ferber, 458 U. S. 747 (1982). When Congress eliminated the adjective "obscene," all of the elements defining the character and content of the materials at issue were relegated to subsections (l)(a) and (2)(a). In this effort to expand the child pornography statute to its full constitutional limits, Congress nowhere expressed an intent to eliminate the mens rea requirement that had previously attached to the character and content of the material through the word obscene.The Committee Reports and legislative debate speak more opaquely as to the desire of Congress for a scienter requirement with respect to the age of minority. An early form of the proposed legislation, S. 2011, was rejected principally because it failed to distinguish between obscene and nonobscene materials. S. Rep. No. 95-438, p. 12 (1977). In evaluating the proposal, the Justice Department offered its thoughts:"[T]he word 'knowingly' in the second line of section 2251 is unnecessary and should be stricken .... Unless 'knowingly' is deleted here, the bill might be subject to an interpretation requiring the Government to prove4 The Miller test for obscenity asks whether the work, taken as a whole, "appeals to the prurient interest," "depicts or describes [sexual conduct] in a patently offensive way," and "lacks serious literary, artistic, political, or scientific value." Miller, 413 U. S., at 24.75the defendant's knowledge of everything that follows 'knowingly', including the age of the child. We assume that it is not the intention of the drafters to require the Government to prove that the defendant knew the child was under age sixteen but merely to prove that the child was, in fact, less than age sixteen ...."On the other hand, the use of the word 'knowingly' in subsection 2252(a)(1) is appropriate to make it clear that the bill does not apply to common carriers or other innocent transporters who have no knowledge of the nature or character of the material they are transporting. To clarify the situation, the legislative history might reflect that the defendant's knowledge of the age of the child is not an element of the offense but that the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved." Id., at 28-29.Respondents point to this language as an unambiguous revelation that Congress omitted a scienter requirement. But the bill eventually reported by the Senate Judiciary Committee adopted some, but not all, of the Department's suggestions; most notably, it restricted the prohibition in § 2251 to obscene materials. Id., at 2. The Committee did not make any clarification with respect to scienter as to the age of minority. In fact, the version reported by the Committee eliminated § 2252 altogether. Ibid. At that juncture, Senator Roth introduced an amendment which would be another precursor of § 2252. In one paragraph, the amendment forbade any person to "knowingly transport [or] ship ... [any] visual medium depicting a minor engaged in sexually explicit conduct." 123 Congo Rec. 33047 (1977). In an exchange during debate, Senator Percy inquired:"Would this not mean that the distributor or seller must have either, first, actual knowledge that the materials do contain child pornographic depictions or, second, cir-76cumstances must be such that he should have had such actual knowledge, and that mere inadvertence or negligence would not alone be enough to render his actions unlawful?" Id., at 33050.Senator Roth replied:"That is absolutely correct. This amendment, limited as it is by the phrase 'knowingly,' insures that only those sellers and distributors who are consciously and deliberately engaged in the marketing of child pornography ... are subject to prosecution .... " Ibid.The parallel House bill did not contain a comparable provision to § 2252 of the Senate bill, and limited § 2251 prosecutions to obscene materials. The Conference Committee adopted the substance of the Roth amendment in large part, but followed the House version by restricting the proscribed depictions to obscene ones. The new bill did restructure the § 2252 provision somewhat, setting off the age of minority requirement in a separate subclause. S. Conf. Rep. No. 95601, p. 2 (1977). Most importantly, the new bill retained the adverb "knowingly" in § 2252 while simultaneously deleting the word "knowingly" from § 2251(a). The Conference Committee explained the deletion in § 2251(a) as reflecting an "intent that it is not a necessary element of a prosecution that the defendant knew the actual age of the child." Id., at 5.5 Respondents point to the appearance of "knowingly" in5 The difference in congressional intent with respect to § 2251 versus § 2252 reflects the reality that producers are more conveniently able to ascertain the age of performers. It thus makes sense to impose the risk of error on producers. United States v. United States District Court for Central District of California, 858 F.2d 534, 543, n. 6 (CA9 1988). Although producers may be convicted under § 2251(a) without proof they had knowledge of age, Congress has independently required both primary and secondary producers to record the ages of performers with independent penalties for failure to comply. 18 U. S. C. §§ 2257(a) and (i) (1988 ed. and Supp. V); American Library Assn. v. Reno, 33 F.3d 78 (CADC 1994).77§ 2251(c) and argue that § 2252 ought to be read like § 2251. But this argument depends on the conclusion that § 2252(c) does not include a knowing requirement, a premise that respondents fail to support. Respondents offer in support of their premise only the legislative history discussing an intent to exclude a scienter requirement from §2251(a). Because §§ 2251(a) and 2251(c) were passed at different times and contain different wording, the intent to exclude scienter from § 2251(a) does not imply an intent to exclude scienter from § 2251(c).6The legislative history can be summarized by saying that it persuasively indicates that Congress intended that the term "knowingly" apply to the requirement that the depiction be of sexually explicit conduct; it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement extend also to the age of the performers. But, turning once again to the statute itself, if the term "knowingly" applies to the sexually explicit conduct depicted, it is emancipated from merely modifying the verbs in subsections (1) and (2). And as a matter of grammar it is6 Congress amended § 2251 to insert subsection (c) in 1986. Pub. L. 99628, 100 Stat. 3510. That provision created new offenses relating to the advertising of the availability of child pornography or soliciting children to participate in such depictions. The legislative history of § 2251(c) does address the scienter requirement: "The government must prove that the defendant knew the character of the visual depictions as depicting a minor engaging in sexually explicit conduct, but need not prove that the defendant actually knew the person depicted was in fact under 18 years of age or that the depictions violated Federal law." H. R. Rep. No. 99-910, p. 6 (1986). It may be argued that since the House Committee Report rejects any requirement of scienter as to the age of minority for § 2251(c), the House Committee thought that there was no such requirement in § 2252. But the views of one Congress as to the meaning of an Act passed by an earlier Congress are not ordinarily of great weight, United States v. Clark, 445 U. S. 23, 33, n. 9 (1980), citing United States v. Southwestern Cable Co., 392 U. S. 157, 170 (1968), and the views of the committee of one House of another Congress are of even less weight, Pierce v. Underwood, 487 U. S. 552, 566 (1988).78difficult to conclude that the word "knowingly" modifies one of the elements in subsections (l)(A) and (2)(A), but not the other.A final canon of statutory construction supports the reading that the term "knowingly" applies to both elements. Cases such as Ferber, 458 U. S., at 765 ("As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant"); Smith v. California, 361 U. S. 147 (1959); Hamling v. United States, 418 U. S. 87 (1974); and Osborne v. Ohio, 495 U. S. 103, 115 (1990), suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts. It is therefore incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988).For all of the foregoing reasons, we conclude that the term "knowingly" in § 2252 extends both to the sexually explicit nature of the material and to the age of the performers.As an alternative grounds for upholding the reversal of their convictions, respondents reiterate their constitutional challenge to 18 U. S. C. § 2256. These claims were not encompassed in the question on which this Court granted certiorari, but a prevailing party, without cross-petitioning, is "entitled under our precedents to urge any grounds which would lend support to the judgment below." Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 419 (1977). Respondents argue that § 2256 is unconstitutionally vague and overbroad because it makes the age of majority 18, rather than 16 as did the New York statute upheld in New York v. Ferber, supra, and because Congress replaced the term "lewd" with the term "lascivious" in defining illegal exhibition of the genitals of children. We regard these claims as insubstantial,79and reject them for the reasons stated by the Court of Appeals in its opinion in this case.Respondents also argued below that their indictment was fatally defective because it did not contain a scienter requirement on the age of minority. The Court of Appeals did not reach this issue because of its determination that § 2252 was unconstitutional on its face, and we decline to decide it here.The judgment of the Court of Appeals isReversed

OCTOBER TERM, 1994SyllabusUNITED STATES v. X-CITEMENT VIDEO, INC., ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 93-723. Argued October 5, 1994-Decided November 29,1994Respondents were convicted under the Protection of Children Against Sexual Exploitation Act of 1977, which prohibits "knowingly" transporting, shipping, receiving, distributing, or reproducing a visual depiction, 18 U. S. C. §§ 2252(a)(I) and (2), if such depiction "involves the use of a minor engaging in sexually explicit conduct," §§ 2252(a)(I)(A) and (2)(A). In reversing, the Ninth Circuit held, inter alia, that § 2252 was facially unconstitutional under the First Amendment because it did not require a showing that the defendant knew that one of the performers was a minor.Held: Because the term "knowingly" in §§ 2252(1) and (2) modifies the phrase "the use of a minor" in subsections (1)(A) and (2)(A), the Act is properly read to include a scienter requirement for age of minority. This Court rejects the most natural grammatical reading, adopted by the Ninth Circuit, under which "knowingly" modifies only the relevant verbs in subsections (1) and (2), and does not extend to the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. Some applications of that reading would sweep within the statute's ambit actors who had no idea that they were even dealing with sexually explicit material, an anomalous result that the Court will not assume Congress to have intended. Moreover, Morissette v. United States, 342 U. S. 246,271, reinforced by Staples v. United States, 511 U. S. 600, 619, instructs that the standard presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct, and the minority status of the performers is the crucial element separating legal innocence from wrongful conduct under § 2252. The legislative history, although unclear as to whether Congress intended "knowingly" to extend to performer age, persuasively indicates that the word applies to the sexually explicit conduct depicted, and thereby demonstrates that "knowingly" is emancipated from merely modifying the verbs in subsections (1) and (2). As a matter of grammar, it is difficult to conclude that the word modifies one of the elements in subsections (1)(A) and (2)(A), but not the other. This interpretation is supported by the canon that a65statute is to be construed where fairly possible so as to avoid substantial constitutional questions. pp. 67-79.982 F.2d 1285, reversed.REHNQUIST, C. J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 79. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 80.Solicitor General Days argued the cause for the United States. With him on the briefs were Assistant Attorney General Harris, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Joel M. Gershowitz.Stanley Fleishman argued the cause for respondents.With him on the briefs were Barry A. Fisher and David Grosz. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transpor-*Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Richard A. Cordray, State Solicitor, and Simon B. Karas, and by the Attorneys General for their respective jurisdictions as follows: Jimmy Evans of Alabama, Bruce M. Botelho of Alaska, Robert Marks of Hawaii, Roland W Burris of Illinois, Richard P. Ieyoub of Louisiana, Frank J. Kelley of Michigan, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Michael F. Easley of North Carolina, Ernest D. Preate, Jr., of Pennsylvania, Pedro R. Pierluisi of Puerto Rico, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Rosalle Simmonds Ballentine of the Virgin Islands, James S. Gilmore III of Virginia, and James E. Doyle of Wisconsin; for the National Family Legal Foundation by Len L. Munsil; and for the National Law Center for Children and Families et al. by H. Robert Showers and Cathleen A. Cleaver.Briefs of amici curiae were filed for the American Booksellers Foundation for Free Expression et al. by Michael A. Bamberger and Margaret S. Determan; for the Law and Linguistics Consortium by Clark D. Cunningham; for Morality in Media, Inc., by Paul J. McGeady; and for PHE, Inc., by Bruce J. Ennis, Jr., and John B. Morris, Jr.66Full Text of Opinion

1979_79-243

MR. CHIEF JUSTICE BURGER announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE WHITE and MR. JUSTICE STEVENS joined.The narrow question presented in this case is whether the right of the public and press to attend criminal trials is guaranteed under the United States Constitution. Page 448 U. S. 559IIn March, 1976, one Stevenson was indicted for the murder of a hotel manager who had been found stabbed to death on December 2, 1975. Tried promptly in July, 1976, Stevenson was convicted of second-degree murder in the Circuit Court of Hanover County, Va. The Virginia Supreme Court reversed the conviction in October, 1977, holding that a bloodstained shirt purportedly belonging to Stevenson had been improperly admitted into evidence. Stevenson v. Commonwealth, 218 Va. 462, 237 S.E.2d 779.Stevenson was retried in the same court. This second trial ended in a mistrial on May 30, 1978, when a juror asked to be excused after trial had begun and no alternate was available. [Footnote 1]A third trial, which began in the same court on June 6, 1978, also ended in a mistrial. It appears that the mistrial may have been declared because a prospective juror had read about Stevenson's previous trials in a newspaper and had told other prospective jurors about the case before the retrial began. See App. 35a-36a.Stevenson was tried in the same court for a fourth time beginning on September 11, 1978. Present in the courtroom when the case was called were appellants Wheeler and McCarthy, reporters for appellant Richmond Newspapers, Inc. Before the trial began, counsel for the defendant moved that it be closed to the public:"[T]here was this woman that was with the family of the deceased when we were here before. She had sat in the Courtroom. I would like to ask that everybody be excluded from the Courtroom because I don't want any information being shuffled back and forth when we have Page 448 U. S. 560 a recess as to what -- who testified to what."Tr. of Sept. 11, 1978 Hearing on Defendant's Motion to Close Trial to the Public 2-3.The trial judge, who had presided over two of the three previous trials, asked if the prosecution had any objection to clearing the courtroom. The prosecutor stated he had no objection, and would leave it to the discretion of the court. Id. at 4. Presumably referring to Va.Code § 19.2-266 (Supp. 1980), the trial judge then announced: "[T]he statute gives me that power specifically, and the defendant has made the motion." He then ordered "that the Courtroom be kept clear of all parties except the witnesses when they testify." Tr., supra, at 4-5. [Footnote 2] The record does not show that any objections to the closure order were made by anyone present at the time, including appellants Wheeler and McCarthy.Later that same day, however, appellants sought a hearing on a motion to vacate the closure order. The trial judge granted the request and scheduled a hearing to follow the close of the day's proceedings. When the hearing began, the court ruled that the hearing was to be treated as part of the trial; accordingly, he again ordered the reporters to leave the courtroom, and they complied.At the closed hearing, counsel for appellants observed that no evidentiary findings had been made by the court prior to the entry of its closure order, and pointed out that the court had failed to consider any other less drastic measures within its power to ensure a fair trial. Tr. of Sept. 11, 1978, Hearing on Motion to Vacate 11-12. Counsel for appellants argued that constitutional considerations mandated that, before ordering closure, the court should first decide that the rights of the defendant could be protected in no other way. Page 448 U. S. 561Counsel for defendant Stevenson pointed out that this was the fourth time he was standing trial. He also referred to "difficulty with information between the Jurors," and stated that he "didn't want information to leak out," be published by the media, perhaps inaccurately, and then be seen by the jurors. Defense counsel argued that these things, plus the fact that "this is a small community," made this a proper case for closure. Id. at 118.The trial judge noted that counsel for the defendant had made similar statements at the morning hearing. The court also stated:"[O]ne of the other points that we take into consideration in this particular Courtroom is layout of the Courtroom. I think that having people in the Courtroom is distracting to the jury. Now, we have to have certain people in here, and maybe that's not a very good reason. When we get into our new Court Building, people can sit in the audience so the jury can't see them. The rule of the Court may be different under those circumstances. . . ."Id. at 19. The prosecutor again declined comment, and the court summed up by saying:"I'm inclined to agree with [defense counsel] that, if I feel that the rights of the defendant are infringed in any way, [when] he makes the motion to do something and it doesn't completely override all rights of everyone else, then I'm inclined to go along with the defendant's motion."Id. at 20. The court denied the motion to vacate, and ordered the trial to continue the following morning "with the press and public excluded." Id. at 27; App. 21a.What transpired when the closed trial resumed the next day was disclosed in the following manner by an order of the court entered September 12, 1978:"[I]n the absence of the jury, the defendant, by counsel, Page 448 U. S. 562 made a Motion that a mistrial be declared, which motion was taken under advisement.""At the conclusion of the Commonwealth's evidence, the attorney for the defendant moved the Court to strike the Commonwealth's evidence on grounds stated to the record, which Motion was sustained by the Court.""And the jury having been excused, the Court doth find the accused NOT GUILTY of Murder, as charged in the Indictment, and he was allowed to depart."Id. at 22a. [Footnote 3]On September 27, 1978, the trial court granted appellants' motion to intervene nunc pro tunc in the Stevenson case. Appellants then petitioned the Virginia Supreme Court for writs of mandamus and prohibition, and filed an appeal from the trial court's closure order. On July 9, 1979, the Virginia Supreme Court dismissed the mandamus and prohibition petitions and, finding no reversible error, denied the petition for appeal. Id. at 23a-28a.Appellants then sought review in this Court, invoking both our appellate, 28 U.S.C. § 1257(2), and certiorari jurisdiction. § 1257(3). We postponed further consideration of the question of our jurisdiction to the hearing of the case on the merits. 444 U.S. 896 (1979). We conclude that jurisdiction by appeal does not lie; [Footnote 4] however, treating the filed Page 448 U. S. 563 papers as a petition for a writ of certiorari pursuant to 28 U.S.C. § 2103, we grant the petition.*ig:jurisdiction*justiciability*The criminal trial which appellants sought to attend has long since ended, and there is thus some suggestion that the case is moot. This Court has frequently recognized, however, that its jurisdiction is not necessarily defeated by the practical termination of a contest which is short-lived by nature. See, e.g., Gannett Co. v. DePasquale, 443 U. S. 368, 443 U. S. 377-378 (1979); Nebraska Press Assn. v. Stuart, 427 U. S. 539, 427 U. S. 546-547 (1976). If the underlying dispute is "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 219 U. S. 515 (1911), it is not moot.Since the Virginia Supreme Court declined plenary review, it is reasonably foreseeable that other trials may be closed by other judges without any more showing of need than is presented on this record. More often than not, criminal trials will be of sufficiently short duration that a closure order "will evade review, or at least considered plenary review in this Court." Nebraska Press, supra, at 427 U. S. 547. Accordingly, we turn to the merits.IIWe begin consideration of this case by noting that the precise issue presented here has not previously been before this Page 448 U. S. 564 Court for decision. In Gannett Co. v. DePasquale, supra, the Court was not required to decide whether a right of access to trials, as distinguished from hearings on pretrial motions, was constitutionally guaranteed. The Court held that the Sixth Amendment's guarantee to the accused of a public trial gave neither the public nor the press an enforceable right of access to a pretrial suppression hearing. One concurring opinion specifically emphasized that "a hearing on a motion before trial to suppress evidence is not a trial. . . ." 443 U.S. at 443 U. S. 394 (BURGER, C.J., concurring). Moreover, the Court did not decide whether the First and Fourteenth Amendments guarantee a right of the public to attend trials, id. at 443 U. S. 392, and n. 24; nor did the dissenting opinion reach this issue. Id. at 443 U. S. 447 (opinion of BLACKMUN, J.).In prior cases, the Court has treated questions involving conflicts between publicity and a defendant's right to a fair trial; as we observed in Nebraska Press Assn. v. Stuart, supra at 427 U. S. 547, "[t]he problems presented by this [conflict] are almost as old as the Republic." See also e.g., Gannett, supra; Murphy v. Florida, 421 U. S. 794 (1975); Sheppard v. Maxwell, 384 U. S. 333 (1966); Estes v. Texas, 381 U. S. 532 (1965). But here, for the first time, the Court is asked to decide whether a criminal trial itself may be closed to the public upon the unopposed request of a defendant, without any demonstration that closure is required to protect the defendant's superior right to a fair trial, or that some other overriding consideration requires closure.AThe origins of the proceeding which has become the modern criminal trial in Anglo-American justice can be traced back beyond reliable historical records. We need not here review all details of its development, but a summary of that history is instructive. What is significant for present purposes is that, throughout its evolution, the trial has been open to all who cared to observe. Page 448 U. S. 565In the days before the Norman conquest, cases in England were generally brought before moots, such as the local court of the hundred or the county court, which were attended by the freemen of the community. Pollock, English Law Before the Norman Conquest, in 1 Select Essays in Anglo-American Legal History 88, 89 (1907). Somewhat like modern jury duty, attendance at these early meetings was compulsory on the part of the freemen, who were called upon to render judgment. Id. at 89-90; see also 1 W. Holdsworth, A History of English Law 10, 12 (1927). [Footnote 5]With the gradual evolution of the jury system in the years after the Norman Conquest, see, e.g., id. at 316, the duty of all freemen to attend trials to render judgment was relaxed, but there is no indication that criminal trials did not remain public. When certain groups were excused from compelled attendance, see the Statute of Marlborough, 52 Hen. 3, ch. 10 (1267); 1 Holdsworth, supra, at 79, and n. 4, the statutory exemption did not prevent them from attending; Lord Coke observed that those excused "are not compellable to come, but left to their own liberty." 2 E. Coke, Institutes of the Laws of England 121 (6th ed. 1681). [Footnote 6]Although there appear to be few contemporary statements Page 448 U. S. 566 on the subject, reports of the Eyre of Kent, a general court held in 1313-1314, evince a recognition of the importance of public attendance apart from the "jury duty" aspect. It was explained that"the King's will was that all evil doers should be punished after their deserts, and that justice should be ministered indifferently to rich as to poor; and for the better accomplishing of this, he prayed the community of the county by their attendance there to lend him their aid in the establishing of a happy and certain peace that should be both for the honour of the realm and for their own welfare."1 Holdsworth, supra at 268, quoting from the S.S. edition of the Eyre of Kent, vol. i., p. 2 (emphasis added) .From these early times, although great changes in courts and procedure took place, one thing remained constant: the public character of the trial at which guilt or innocence was decided. Sir Thomas Smith, writing in 1565 about "the definitive proceedinges in causes criminall," explained that, while the indictment was put in writing as in civil law countries:"All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so manie as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide."T. Smith, De Republica Anglorum 101 (Alston ed.1972) (emphasis added). Three centuries later, Sir Frederick Pollock was able to state of the "rule of publicity" that, "[h]ere we have one tradition, at any rate, which has persisted through all changes." F. Pollock, The Expansion of the Common Law 31-32 (1904). See also E. Jenks, The Book of English Law 73-74 (6th ed.1967):"[O]ne of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the Page 448 U. S. 567 public have free access, . . . appears to have been the rule in England from time immemorial."We have found nothing to suggest that the presumptive openness of the trial which English courts were later to call "one of the essential qualities of a court of justice," Dabney v. Cooper, 10 B. & C. 237, 240, 109 Eng.Rep. 438, 440 (K.B. 1829), was not also an attribute of the judicial systems of colonial America. In Virginia, for example, such records as there are of early criminal trials indicate that they were open, and nothing to the contrary has been cited. See A. Scott, Criminal Law in Colonial Virginia 128-129 (1930); Reinsch, The English Common Law in the Early American Colonies, in 1 Select Essays in Anglo-American Legal History 367, 405 (1907). Indeed, when in the mid-1600's the Virginia Assembly felt that the respect due the courts was"by the clamorous unmannerlynes of the people lost, and order, gravity and decoram which should manifest the authority of a court in the court it selfe neglected,"the response was not to restrict the openness of the trials to the public, but, instead, to prescribe rules for the conduct of those attending them. See Scott, supra at 132.In some instances, the openness of trials was explicitly recognized as part of the fundamental law of the Colony. The 1677 Concessions and Agreements of West New Jersey, for example, provided:"That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner."Reprinted in Sources of Our Liberties 188 (R. Perry ed.1959). See also 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971). Page 448 U. S. 568 The Pennsylvania Frame of Government of 1682 also provided "[t]hat all courts shall be open . . . ," Sources of Our Liberties, supra at 217; 1 Schwartz, supra at 140, and this declaration was reaffirmed in § 26 of the Constitution adopted by Pennsylvania in 1776. See 1 Schwartz, supra at 271. See also §§ 12 and 76 of the Massachusetts Body of Liberties, 1641, reprinted in 1 Schwartz, supra at 73, 80.Other contemporary writings confirm the recognition that part of the very nature of a criminal trial was its openness to those who wished to attend. Perhaps the best indication of this is found in an address to the inhabitants of Quebec which was drafted by a committee consisting of Thomas Cushing, Richard Henry Lee, and John Dickinson and approved by the First Continental Congress on October 26, 1774. 1 Journals of the Continental Congress, 1774-1789, pp. 101, 105 (1904) (Journals). This address, written to explain the position of the Colonies and to gain the support of the people of Quebec, is an "exposition of the fundamental rights of the colonists, as they were understood by a representative assembly chosen from all the colonies." 1 Schwartz, supra at 221. Because it was intended for the inhabitants of Quebec, who had been "educated under another form of government" and had only recently become English subjects, it was thought desirable for the Continental Congress to explain "the inestimable advantages of a free English constitution of government, which it is the privilege of all English subjects to enjoy." 1 Journals 106."[One] great right is that of trial by jury. This provides that neither life, liberty nor property can be taken from the possessor until twelve of his unexceptionable countrymen and peers of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character and the characters of the witnesses, upon a fair trial, and full enquiry, face to face, in open Court, before as many of the people as chuse to Page 448 U. S. 569 attend, shall pass their sentence upon oath against him. . . ."Id. at 107 (emphasis added).BAs we have shown, and as was shown in both the Court's opinion and the dissent in Gannett, 443 U.S. at 443 U. S. 384, 443 U. S. 386, n. 15, 443 U. S. 418-425, the historical evidence demonstrate conclusively that, at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo-American trial. Both Hale in the 17th century and Blackstone in the 18th saw the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality. See, e.g., M. Hale, The History of the Common Law of England 343-345 (6th ed. 1820); 3 W. Blackstone, Commentaries *372-*373. Jeremy Bentham not only recognized the therapeutic value of open justice but regarded it as the keystone:"Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance."1 J. Bentham Rationale of Judicial Evidence 524 (1827). [Footnote 7]Panegyrics on the values of openness were by no means confined to self-praise by the English. Foreign observers of English criminal procedure in the 18th and early 19th centuries Page 448 U. S. 570 came away impressed by the very fact that they had been freely admitted to the courts, as many were not in their own homelands. See L. Radzinowicz, A History of English Criminal Law 715, and n. 96 (1948). They marveled that "the whole juridical procedure passes in public," 2 P. Grosley, A Tour to London; or New Observations on England 142 (Nugent trans. 1772), quoted in Radzinowicz, supra at 717, and one commentator declared:"The main excellence of the English judicature consists in publicity, in the free trial by jury, and in the extraordinary despatch with which business is transacted. The publicity of their proceedings is indeed astonishing. Free access to the courts is universally granted."C. Goede, A Foreigner's Opinion of England 214 (Horne trans. 1822) (emphasis added.) The nexus between openness, fairness, and the perception of fairness was not lost on them:"[T]he judge, the counsel, and the jury, are constantly exposed to public animadversion, and this greatly tends to augment the extraordinary confidence which the English repose in the administration of justice."Id. at 215.This observation raises the important point that "[t]he publicity of a judicial proceeding is a requirement of much broader bearing than its mere effect upon the quality of testimony." 6 J. Wigmore, Evidence § 1834, p. 435 (J. Chadbourn rev.1976). [Footnote 8] The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value. Even without such experts to frame Page 448 U. S. 571 the concept in words, people sensed from experience and observation that, especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results.When a shocking crime occurs, a community reaction of outrage and public protest often follows. See H. Weihofen, The Urge to Punish 130-131 (1956). Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated, and may manifest themselves in some form of vengeful "self-help," as indeed they did regularly in the activities of vigilante "committees" on our frontiers."The accusation and conviction or acquittal, as much perhaps as the execution of punishment, operat[e] to restore the imbalance which was created by the offense or public charge, to reaffirm the temporarily lost feeling of security and, perhaps, to satisfy that latent 'urge to punish.'"Mueller, Problems Posed by Publicity to Crime and Criminal Proceedings, 110 U.Pa.L.Rev. 1, 6 (1961).Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people's consciousness the fundamental, natural yearning to see justice done -- or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner." Supra at 448 U. S. 567. It is not enough to say that results alone will satiate the natural community desire for "satisfaction." A result considered untoward may undermine public confidence, and where the trial has been concealed from public view, an unexpected outcome can cause a reaction that the system, at best, has failed, and, at worst, has been corrupted. To work effectively, it is important that society's criminal Page 448 U. S. 572 process "satisfy the appearance of justice," Offutt v. United States, 348 U. S. 11, 348 U. S. 14 (1954), and the appearance of justice can best be provided by allowing people to observe it.Looking back, we see that, when the ancient "town meeting" form of trial became too cumbersome, 12 members of the community were delegated to act as its surrogates, but the community did not surrender its right to observe the conduct of trials. The people retained a "right of visitation" which enabled them to satisfy themselves that justice was, in fact, being done.People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case:"The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy."6 Wigmore, supra, at 438. See also 1 J. Bentham, Rationale of Judicial Evidence, at 525.In earlier times, both in England and America, attendance at court was a common mode of "passing the time." See, e.g., 6 Wigmore, supra, at 436; Mueller, supra, at 6. With the press, cinema, and electronic media now supplying the representations or reality of the real life drama once available only in the courtroom, attendance at court is no longer a widespread pastime. Yet"[i]t is not unrealistic, even in this day, to believe that public inclusion affords citizens a form of legal education, and hopefully promotes confidence in the fair administration of justice."State v. Schmit, 273 Minn. 78, 87-88, 139 N.W.2d 800, 807 (1966). Instead of acquiring information about trials by firsthand observation or by word Page 448 U. S. 573 of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public. While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard. This"contribute[s] to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system. . . ."Nebraska Press Assn. v. Stuart, 427 U.S. at 427 U. S. 587 (BRENNAN, J., concurring in judgment).CFrom this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice. This conclusion is hardly novel; without a direct holding on the issue, the Court has voiced its recognition of it in a variety of contexts over the years. [Footnote 9] Even while holding, in Levine v. Page 448 U. S. 574 United States, 362 U. S. 610 (1960), that a criminal contempt proceeding was not a "criminal prosecution" within the meaning of the Sixth Amendment, the Court was careful to note that more than the Sixth Amendment was involved:"[W]hile the right to a 'public trial' is explicitly guaranteed by the Sixth Amendment only for 'criminal prosecutions,' that provision is a reflection of the notion, deeply rooted in the common law, that 'justice must satisfy the appearance of justice.' . . . [D]ue process demands appropriate regard for the requirements of a public proceeding in cases of criminal contempt . . . as it does for all adjudications through the exercise of the judicial power, barring narrowly limited categories of exceptions. . . ."Id. at 362 U. S. 616. [Footnote 10] And recently, in Gannett Co. v. DePasquale, 443 U. S. 368 (1979), both the majority, id. at 443 U. S. 384, 386, n. 15, and dissenting opinion, id. at 443 U. S. 423, agreed that open trials were part of the common law tradition. Page 448 U. S. 575Despite the history of criminal trials being presumptively open since long before the Constitution, the State presses its contention that neither the Constitution nor the Bill of Rights contains any provision which, by its terms, guarantees to the public the right to attend criminal trials. Standing alone, this is correct, but there remains the question whether, absent an explicit provision, the Constitution affords protection against exclusion of the public from criminal trials.IIIAThe First Amendment, in conjunction with the Fourteenth, prohibits governments from"abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. Plainly it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted; as we have shown, recognition of this pervades the centuries-old history of open trials and the opinions of this Court. Supra at 448 U. S. 564-575, and n. 9.The Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself; the conduct of trials "before as many of the people as chuse to attend" was regarded as one of "the inestimable advantages of a free English constitution of government." 1 Journals 106, 107. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees."[T]he First Amendment goes beyond protection of the press and the self-expression Page 448 U. S. 576 of individuals to prohibit government from limiting the stock of information from which members of the public may draw."First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 783 (1978). Free speech carries with it some freedom to listen. "In a variety of contexts, this Court has referred to a First Amendment right to receive information and ideas.'" Kleindienst v. Mandel, 408 U. S. 753, 408 U. S. 762 (1972). What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted."For the First Amendment does not speak equivocally. . . . It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."Bridges v. California, 314 U. S. 252, 314 U. S. 263 (1941) (footnote omitted). It is not crucial whether we describe this right to attend criminal trials to hear, see, and communicate observations concerning them as a "right of access," cf. Gannett, supra at 443 U. S. 397 (POWELL, J., concurring); Saxbe v. Washington Post Co., 417 U. S. 843 (1974); Pell v. Procunier, 417 U. S. 817 (1974), [Footnote 11] or a "right to gather information," for we have recognized that, "without some protection for seeking out the news, freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 681 (1972). The explicit, guaranteed rights to speak and to publish concerning what takes place at a Page 448 U. S. 577 trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily. [Footnote 12]BThe right of access to places traditionally open to the public, as criminal trials have long been, may be seen as assured by the amalgam of the First Amendment guarantees of speech and press; and their affinity to the right of assembly is not without relevance. From the outset, the right of assembly was regarded not only as an independent right, but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. [Footnote 13] Page 448 U. S. 578 "The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental." De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 364 (1937). People assemble in public places not only to speak or to take action, but also to listen, observe, and learn; indeed, they may "assembl[e] for any lawful purpose," Hague v. CIO, 307 U. S. 496, 307 U. S. 519 (1939) (opinion of Stone, J.). Subject to the traditional time, place, and manner restrictions, see, e.g., Cox v. New Hampshire, 312 U. S. 569 (1941); see also Cox v. Louisiana, 379 U. S. 559, 379 U. S. 560-564 (1965), streets, sidewalks, and parks are places traditionally open, where First Amendment rights may be exercised, see Hague v. CIO, supra, at 307 U. S. 515 (opinion of Roberts, J.); a trial courtroom also is a public place where the people generally -- and representatives of the media -- have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. [Footnote 14] Page 448 U. S. 579CThe State argues that the Constitution nowhere spells out a guarantee for the right of the public to attend trials, and that, accordingly, no such right is protected. The possibility that such a contention could be made did not escape the notice of the Constitution's draftsmen; they were concerned that some important rights might be thought disparaged because not specifically guaranteed. It was even argued that, because of this danger, no Bill of Rights should be adopted. See, e.g., The Federalist No. 84 (A. Hamilton). In a letter to Thomas Jefferson in October, 1788, James Madison explained why he, although "in favor of a bill of rights," had "not viewed it in an important light" up to that time: "I conceive that, in a certain degree . . . , the rights in question are reserved by the manner in which the federal powers are granted." He went on to state that "there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude." 5 Writings of James Madison 271 (G. Hunt ed.1904). [Footnote 15]But arguments such as the State makes have not precluded recognition of important rights not enumerated. Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable Page 448 U. S. 580 doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. [Footnote 16] The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.We hold that the right to attend criminal trials [Footnote 17] is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and "of the press could be eviscerated." Branzburg, 408 U.S. at 408 U. S. 681.DHaving concluded there was a guaranteed right of the public under the First and Fourteenth Amendments to attend the trial of Stevenson's case, we return to the closure order challenged by appellants. The Court in Gannett made clear that, although the Sixth Amendment guarantees the accused a right to a public trial, it does not give a right to a private trial. 443 U.S. at 443 U. S. 382. Despite the fact that this was the fourth trial of the accused, the trial judge made no findings to support closure; no inquiry was made as to whether alternative Page 448 U. S. 581 solutions would have met the need to ensure fairness; there was no recognition of any right under the Constitution for the public or press to attend the trial. In contrast to the pretrial proceeding dealt with in Gannett, there exist in the context of the trial itself various tested alternatives to satisfy the constitutional demands of fairness. See, e.g., Nebraska Press Assn. v. Stuart, 427 U.S. at 427 U. S. 563-565; Sheppard v. Maxwell, 384 U.S. at 384 U. S. 357-362. There was no suggestion that any problems with witnesses could not have been dealt with by their exclusion from the courtroom or their sequestration during the trial. See id. at 384 U. S. 359. Nor is there anything to indicate that sequestration of the jurors would not have guarded against their being subjected to any improper information. All of the alternatives admittedly present difficulties for trial courts, but none of the factors relied on here was beyond the realm of the manageable. Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. [Footnote 18] Accordingly, the judgment under review isReversed

U.S. Supreme CourtRichmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)Richmond Newspapers, Inc. v. VirginiaNo. 79-243Argued February 19, 1980Decided July 2, 1980448 U.S. 555SyllabusAt the commencement of a fourth trial on a murder charge (the defendant's conviction after the first trial having been reversed on appeal, and two subsequent retrials having ended in mistrials), the Virginia trial court granted defense counsel's motion that the trial be closed to the public without any objections having been made by the prosecutor or by appellants, a newspaper and two of its reporters who were present in the courtroom, defense counsel having stated that he did not "want any information being shuffled back and forth when we have a recess as to . . . who testified to what." Later that same day, however, the trial judge granted appellants' request for a hearing on a motion to vacate the closure order, and appellants' counsel contended that constitutional considerations mandated that, before ordering closure, the court should first decide that the defendant's rights could be protected in no other way. But the trial judge denied the motion, saying that, if he felt that the defendant's rights were infringed in any way and others' rights were not overridden, he was inclined to order closure, and ordered the trial to continue "with the press and public excluded." The next day, the court granted defendant's motion to strike the prosecution's evidence, excused the jury, and found the defendant not guilty. Thereafter, the court granted appellants' motion to intervene nunc pro tunc in the case, and the Virginia Supreme Court dismissed their mandamus and prohibition petitions and, finding no reversible error, denied their petition for appeal from the closure order.Held: The judgment is reversed. Pp. 448 U. S. 563-581; 448 U. S. 584-598; 448 U. S. 598-601; 448 U. S. 601-604.Reversed.MR. CHIEF JUSTICE BURGER, joined by MR JUSTICE WHITE and MR. JUSTICE STEVENS, concluded that the right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments. Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. Gannett Co. v. DePasquale, 443 U. S. 368, distinguished. Pp. 448 U. S. 563-581. Page 448 U. S. 556(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that, at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 U. S. 11, 348 U. S. 14, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice. Cf., e.g., Levine v. United States, 362 U. S. 610. Pp. 448 U. S. 563-575.(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right, but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally -- and representatives of the media -- have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. Pp. 448 U. S. 575-578.(c) Even though the Constitution contains no provision which, by its terms, guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; Page 448 U. S. 557 without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Pp. 448 U. S. 579-580.(d) With respect to the closure order in this case, despite the fact that this was the accused's fourth trial, the trial judge made no findings to support closure; no inquiry was made as to whether alternative solutions would have met the need to ensure fairness; there was no recognition of any right under the Constitution for the public or press to attend the trial; and there was no suggestion that any problems with witnesses could not have been dealt with by exclusion from the courtroom or sequestration during the trial, or that sequestration of the jurors would not have guarded against their being subjected to any improper information. Pp. 448 U. S. 580-581.MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL, concluded that the First Amendment -- of itself and as applied to the States through the Fourteenth Amendment -- secures the public a right of access to trial proceedings, and that, without more, agreement of the trial judge and the parties cannot constitutionally close a trial to the public. Historically and functionally, open trials have been closely associated with the development of the fundamental procedure of trial by jury, and trial access assumes structural importance in this Nation's government of laws by assuring the public that procedural rights are respected and that justice is afforded equally, by serving as an effective restraint on possible abuse of judicial power, and by aiding the accuracy of the trial factfinding process. It was further concluded that it was not necessary to consider in this case what countervailing interests might be sufficiently compelling to reverse the presumption of openness of trials, since the Virginia statute involved -- authorizing trial closures at the unfettered discretion of the judge and parties -- violated the First and Fourteenth Amendments. Pp. 448 U. S. 584-598.MR. JUSTICE STEWART concluded that the First and Fourteenth Amendments clearly give the press and the public a right of access to trials, civil as well as criminal; that such right is not absolute, since various considerations may sometimes justify limitations upon the unrestricted presence of spectators in the courtroom; but that, in the present case, the trial judge apparently gave no recognition to the right of representatives of the press and members of the public to be present at the trial. Pp. 448 U. S. 598-601.MR. JUSTICE BLACKMUN, while being of the view that Gannett Co. v. DePasquale, supra, was in error, both in its interpretation of the Sixth Amendment generally and in its application to the suppression hearing Page 448 U. S. 558 involved there, and that the right to a public trial is to be found in the Sixth Amendment, concluded, as a secondary position, that the First Amendment must provide some measure of protection for public access to the trial, and that here, by closing the trial, the trial judge abridged these First Amendment interests of the public. Pp. 448 U. S. 601-604.BURGER, C J., announced the Court's judgment and delivered an opinion, in which WHITE and STEVENS, JJ., joined. WHITE, J., post, p. 448 U. S. 581, and STEVENS, J., post, p. 448 U. S. 582, filed concurring opinions. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 448 U. S. 584. STEWART, J., post, p. 448 U. S. 598, and BLACKMUN, J., post, p. 448 U. S. 601, filed opinions concurring in the judgment. REHNQUIST, J., filed a dissenting opinion, post, p. 448 U. S. 604. POWELL, J., took no part in the consideration or decision of the case.

1962_316

MR. JUSTICE BRENNAN delivered the opinion of the Court.By the terms of an agreement (the Agreement) authorized by § 2 Eleventh of the Railway Labor Act [Footnote 1] between Page 373 U. S. 116 the Southern Railway Company and a number of railway labor organizations, including the two petitioners herein, employees of Southern are obligated, as a condition of employment, to pay the periodic dues, initiation fees and assessments uniformly required as a condition of acquiring or retaining membership in the union representing their particular class or craft. [Footnote 2] The individual respondents herein are a number of such employees belonging to classes or crafts represented by petitioners. [Footnote 3] When the Agreement was adopted, respondents were not union members. They refused to pay petitioners any part of the moneys required under the Agreement, instead bringing this action in the Superior Court of Mecklenburg County, North Carolina, to restrain its enforcement. [Footnote 4] After a Page 373 U. S. 117 trial, the Superior Court granted an injunction upon the jury's separate findings that moneys exacted under the Agreement were used by petitioners for purposes not reasonably necessary or related to collective bargaining, namely, (1) to support or oppose legislation, (2) to influence votes in elections for public office, (3) to make campaign contributions in such elections, (4) to support the death benefits system operated by petitioner Brotherhood of Railway Clerks. The injunction restrained petitioners"from placing any compulsion of any nature upon the [respondents] . . . whereby they . . . against their free will and choice would be required to join the Defendant Unions . . . or pay money to said Unions."It was provided, however, that, upon a showing by petitioners of the proportion of expenditures from exacted funds that was reasonably necessary and related to collective bargaining, the injunction would be modified appropriately.On appeal, the Supreme Court of North Carolina reversed, Allen v. Southern R. Co., 249 N.C. 491, 107 S.E.2d 125, holding that judgment for petitioners was required by our decision in Railway Employes' Dept. v. Hanson, 351 U. S. 225, where we held that § 2 Eleventh was a valid exercise by Congress of its powers under the Page 373 U. S. 118 Commerce Clause, and did not violate the First Amendment or the Due Process Clause of the Fifth. However, rehearing was granted, and, pending decision thereon, we decided International Assn. of Machinists v. Street, 367 U. S. 740. Upon reconsideration of the Superior Court's judgment in the light of that decision, the Supreme Court of North Carolina divided equally, which had the effect of affirming the lower court's judgment. 256 N.C. 700, 124 S.E.2d 871 (per curiam); see Schoenith v. Town & Country Realty Co., 244 N.C. 601, 94 S.E.2d 592 (per curiam); Ward v. O'Dell Mfg. Co., 126 N.C. 946, 36 S.E. 194. We granted certiorari, 371 U.S. 875, to consider whether the injunction granted by the Superior Court might stand consistently with our decision in Street. b We reverse and remand for further proceedings not inconsistent with this opinion.First. We held in Street"that § 2, Eleventh is to be construed to deny the unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes."367 U.S. at 367 U. S. 768-769. Respondents' amended complaint alleges that sums exacted under the Agreement"have been and are and will be regularly and continually used by the defendant Unions to carry on, finance and pay for political activities directly at cross-purposes with the free will and choice of the plaintiffs."This allegation sufficiently states a cause of action. It would be impracticable to require a dissenting employee to allege and prove each distinct union political expenditure to which he objects; it is enough that he manifests his opposition to any political expenditures by the union. [Footnote 5] But we made clear in Street Page 373 U. S. 119 that "dissent is not to be presumed -- it must affirmatively be made known to the union by the dissenting employee." 367 U.S. at 367 U. S. 774. [Footnote 6] At trial, only 14 of the respondents testified that they objected to the use of exacted sums for political causes. No respondent who does not, in the course of the further proceedings in this case, prove that he objects to such use will be entitled to relief. This is not and cannot be a class action. See note 4 supra."The union receiving money exacted from an employee under a union shop agreement should not, in fairness, be subjected to sanctions in favor of an employee who makes no complaint of the use of his money for such activities."367 U.S. at 367 U. S. 774.Second. We also held in Street that an injunction relieving dissenting employees of all obligation to pay the moneys due under an agreement authorized by § 2 Eleventh was impermissible. Such employees"remain obliged, as a condition of continued employment, to make Page 373 U. S. 120 the payments to their respective unions called for by the agreement. Their . . . grievance stems from the spending of their funds for purposes not authorized by the Act in the face of their objection, not from the enforcement of the union shop agreement by the mere collection of funds."367 U.S. at 367 U. S. 771. The injunction granted by the Superior Court was thus improper, even though it is subject to modification if petitioners come forward and prove the proportion of exacted funds required for purposes germane to collective bargaining. Even such a remedy, we think,"sweeps too broadly . . . , [and] might well interfere with the . . . unions' performance of those functions and duties which the Railway Labor Act places upon them to attain its goal of stability in the industry."Ibid.It also follows from Street that the Superior Court erred in granting respondents interim relief against compliance with the financial obligations imposed by the Agreement. As a result of this relief, none of the respondents has taken any steps toward compliance since the suit was instituted. We think that, lest the important functions of labor organizations under the Railway Labor Act be unduly impaired, dissenting employees (at least in the absence of special circumstances not shown here) can be entitled to no relief until final judgment in their favor is entered. Therefore, on remand, respondents should be given a reasonable time within which they must pay to the bargaining representative of their class or craft all sums required under the Agreement, including arrears, that are owing; as to any respondent failing to do this, the action must be dismissed.Third. We suggested in Street that among the permissible remedies for dissenting employees were"an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those Page 373 U. S. 121 moneys to be spent by the union for political purposes, which is so much of the moneys exacted from him as is the proportion of the union's total expenditures made for such political activities to the union's total budget,"and restitution of such a sum already exacted from the complainant and expended by the union over his objection. 367 U.S. at 367 U. S. 774-775. The necessary predicate for such remedies is a division of the union's political expenditures from those germane to collective bargaining, since only the former, to the extent made from exacted funds of dissenters, are not authorized by § 2 Eleventh. But, at trial, no evidence was offered by either side, nor was the jury required to make findings, as to the total amount of union expenditures for political purposes, the breakdown of the total union budget according to particular kinds of expenditure, or the proportion of political expenditures in the total union budget of a given period. [Footnote 7] On remand, in order to frame a decree embodying the suggested remedies, two determinations will have to be made: (1) what expenditures disclosed by the record are political; (2) what percentage of total union expenditures are political expenditures. As to (1), we presently intimate no view, see note 7 supra, because here, as in Street, see 367 U.S. at 367 U. S. 768-770, the courts below made no attempt to draw the boundary between political expenditures and those germane to collective bargaining, and it would be inappropriate for this Court to do so in the first instance and upon the present record. As to (2), the present record is insufficient to enable any calculation. Page 373 U. S. 122Since the unions possess the facts and records from which the proportion of political to total union expenditures can reasonably be calculated, basic considerations of fairness compel that they, not the individual employees, bear the burden of proving such proportion. Absolute precision in the calculation of such proportion is not, of course, to be expected or required; we are mindful of the difficult accounting problems that may arise. And no decree would be proper which appeared likely to infringe the unions' right to expend uniform exactions under the union shop agreement in support of activities germane to collective bargaining and, as well, to expend nondissenters' such exactions in support of political activities.Fourth. While adhering to the principles governing remedy which we announced in Street, see 367 U.S. at 367 U. S. 771-775, we think it appropriate to suggest, in addition, a practical decree to which each respondent proving his right to relief would be entitled. Such a decree would order (1) the refund to him of a portion of the exacted funds in the same proportion that union political expenditures bear to total union expenditures, and (2) a reduction of future such exactions from him by the same proportion. We recognize that practical difficulties may attend a decree reducing an employee's obligations under the union shop agreement by a fixed proportion, since the proportion of the union budget devoted to political activities may not be constant. The difficulties in judicially administered relief, although not insurmountable (a decree, once entered, would, of course, be modifiable upon a showing of changed circumstances), should, we think, encourage petitioner unions to consider the adoption by their membership of some voluntary plan by which dissenters would be afforded an internal union remedy. Page 373 U. S. 123 There is precedent for such a plan. [Footnote 8] If a union agreed upon a formula for ascertaining the proportion of political expenditures in its budget, and made available a simple procedure for allowing dissenters to be excused from having to pay this proportion of moneys due from them under the union shop agreement, prolonged and expensive litigation might well be averted. The instant action, for example, has been before the courts for 10 years, and has not yet run its course. It is a lesson of our national history of industrial relations that resort to litigation to settle the rights of labor organizations and employees very Page 373 U. S. 124 often proves unsatisfactory. The courts will not shrink from affording what remedies they may, with due regard for the legitimate interests of all parties; but it is appropriate to remind the parties of the availability of more practical alternatives to litigation for the vindication of the rights and accommodation of interests here involved.Reversed

U.S. Supreme CourtRailway Clerks v. Allen, 373 U.S. 113 (1963)Brotherhood of Railway and Steamship Clerks, Freight Handlers,Express and Station Employees v. AllenNo. 316Argued March 25, 1963Decided May 13, 1963373 U.S. 113SyllabusA group of nonunion railroad employees sued in a North Carolina State Court to enjoin enforcement of a union shop agreement entered into between a railroad and several unions representing their employees under § 2 Eleventh, of the Railway Labor Act, which required all employees to pay uniformly exacted union initiation fees, assessments, and dues, in order to keep their jobs. The complaint alleged that sums exacted under the agreement "have been and are and will be regularly and continually used" to finance political activities "directly at cross-purposes with the free will and choice of the plaintiffs." A jury made separate findings that moneys exacted under the agreement were used by the unions for purposes not reasonably necessary or related to collective bargaining, including certain political activities. The trial court enjoined the unions"from placing any compulsion of any nature upon the [plaintiffs] . . . whereby they . . . against their free will and choice would be required to join the Defendant Unions . . . or pay money to said Unions,"provided, however, that, upon a showing by the unions of the proportion of expenditures from exacted funds that was reasonably necessary and related to collective bargaining, the injunction would be modified appropriately. The State Supreme Court affirmed by an equally divided vote.Held: the judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Pp. 373 U. S. 115-124.1. The allegation of the complaint that sums exacted under the agreement "have been and are and will be regularly and continually used by the defendant Unions to carry on, finance and pay for political activities directly at cross-purposes with the free will and choice of the plaintiffs" sufficiently stated a cause of action. Pp. 373 U. S. 118-119.(a) Section 2 Eleventh denies the unions the power, over an employee's objection, to use his exacted funds to support political activities which he opposes. International Assn. of Machinists v. Street, 367 U. S. 740. P. 373 U. S. 118. Page 373 U. S. 114(b) It would be impracticable to require a dissenting employee to allege and prove each distinct union political expenditure to which he objects; it is enough that he manifests his objection to any political expenditures by the union. P. 373 U. S. 118.(c) However, dissent is not to be presumed, but must be made known to the union by each dissenting employee; this is not a class action, and no plaintiff who does not, in the course of the further proceedings in this case, prove that he objects to such use will be entitled to relief. Pp. 373 U. S. 118-119.2. The trial court's injunction relieving the plaintiffs of all obligation to pay the moneys due under the agreement was improper, even though it was subject to modification if the unions came forward and proved the proportion of exacted funds required for purposes germane to collective bargaining. Pp. 373 U. S. 119-120.(a) Such a remedy is too broad, and might interfere with the performance by the unions of those functions and duties which the Railway Labor Act places upon them to attain its goal of stability in the industry. P. 373 U. S. 120.(b) On remand, the plaintiffs should be given a reasonable time in which to pay to the appropriate union all sums required under the agreement, including arrears, that are owing; and the action must be dismissed as to any plaintiff failing to do this. P. 373 U. S. 120.3. Among the permissible remedies for dissenting employees are an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those moneys to be spent by the union for political purposes, which is so much of the moneys exacted from the employee as is the proportion of the union's total expenditures made for such political activities to the union's total budget, and restitution of such a sum already exacted from the employees and expended by the union over his objection. In order to frame such a decree on remand, it will be necessary to make determinations as to (1) what expenditures disclosed by the record are political, and what percentage of total union expenditures are political expenditures; and the unions, not the individual employees, must bear the burden of proving such proportion. Pp. 373 U. S. 120-122.4. A practical decree to which each plaintiff proving his right to relief would be entitled would order (1) the refund to him of a portion of the exacted funds in the same proportion that union Page 373 U. S. 115 political expenditures bear to total union expenditures, and (2) a reduction of future such exactions from him by the same proportion. Pp. 373 U. S. 122-124.256 N.C. 700, 124 S.E.2d 871, reversed, and cause remanded.

1974_73-1689

MR. JUSTICE STEWART delivered the opinion of the Court.The Government commenced this civil antitrust action in the United States District Court for the Central District of California, contending that the appellee, American Building Maintenance Industries, had violated § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18, by acquiring the stock of J. E. Benton Management Corp., and by merging Benton Maintenance Co. into one of the appellee's wholly owned subsidiaries. Following discovery proceedings and the submission of memoranda and affidavits by both parties, the District Court granted the appellee's motion for summary judgment, holding that there had been no violation of § 7 of the Clayton Act. The Government brought an appeal to this Court, and we noted probable jurisdiction. 419 U.S. 1104. [Footnote 1]IThe appellee, American Building Maintenance Industries, is one of the largest suppliers of janitorial services in the country, with 56 branches serving more than 500 communities in the United States and Canada. It is also the single largest supplier of janitorial services in southern California (the area comprising Los Angeles, Orange, San Bernardino, Riverside, Santa Barbara, and Ventura Counties), providing approximately 10% of the sales of such services in that area. Page 422 U. S. 274Both of. the acquired companies, J. E. Benton Management Corp. and Benton Maintenance Co., also supplied janitorial services in Southern California. [Footnote 2] Together, their sales constituted approximately 70% of the total janitorial sales in that area. Although both Benton companies serviced customers engaged in interstate operations, all of their janitorial and maintenance contracts with those customers were performed entirely within California. Neither of the Benton companies advertised nationally, and their use of interstate communications facilities to conduct business was negligible. [Footnote 3]The major expense of providing janitorial services is the cost of the labor necessary to perform the work. The Benton companies recruited the unskilled workers needed to supply janitorial services entirely from the local labor market in Southern California. The incidental equipment and supplies utilized in providing those janitorial services, except in concededly insignificant amounts, were purchased from local distributors. [Footnote 4] Page 422 U. S. 275It is unquestioned that the appellee, American Building Maintenance Industries, was and is actively engaged in interstate commerce. But on the basis of the above facts, the District Court concluded that, at the time of the challenged acquisition and merger, neither Benton Management Corp. nor Benton Maintenance Co. was "engaged in commerce" within the meaning of § 7 of the Clayton Act. Accordingly, the District Court held that there had been no violation of that law.The Government's appeal raises two questions: first, does the phrase "engaged in commerce," as used in § 7 of the Clayton Act, encompass corporations engaged in intrastate activities that substantially affect interstate commerce? Second, if the language of § 7 requires proof of actual engagement in the flow of interstate commerce, were the Benton companies' activities sufficient to satisfy that standard?IISection 7 of the Clayton Act, 15 U.S.C. § 18, provides in pertinent part:"No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly."Under the explicit reach of § 7, therefore, not only must the acquiring corporation be "engaged in commerce," but Page 422 U. S. 276 the corporation or corporations whose stock or assets are acquired must be "engaged also in commerce." [Footnote 5]The distinct "in commerce" language of § 7, the Court observed earlier this Term,"appears to denote only persons or activities within the flow of interstate commerce -- the practical, economic continuity in the generation of goods and services for interstate markets and their transport and distribution to the consumer. If this is so, the jurisdictional requirements of [§ 7] cannot be satisfied merely by showing that allegedly anticompetitive acquisitions and activities affect commerce."Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 419 U. S. 195. But even more unambiguous support for this construction of the narrow "in commerce" language enacted by Congress in § 7 of the Clayton Act is to be found in an earlier decision of this Court, FTC v. Bunte Bros., 312 U. S. 349.In Bunte Bros., the Court was required to determine the scope of § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45, which authorized the Commission to proceed only against "unfair methods of competition in commerce." The Court squarely held that the Commission's § 5 jurisdiction was limited to unfair methods of competition occurring in the flow of interstate commerce. The contention that "in commerce" should be read as if it meant "affecting interstate commerce" was emphatically rejected:"The construction of § 5 urged by the Commission would thus give a federal agency pervasive control over myriads of local businesses in matters heretofore traditionally left to local custom or local law. . . . An inroad upon local Page 422 U. S. 277 conditions and local standards of such far-reaching import as is involved here, ought to await a clearer mandate from Congress."312 U.S. at 312 U. S. 354-355. [Footnote 6]The phrase "in commerce" does not, of course, necessarily have a uniform meaning whenever used by Congress. See, e.g., Kirschbaum Co. v. Walling, 316 U. S. 517, 316 U. S. 520-521. But the Bunte Bros. construction of § 5 of the Federal Trade Commission Act is particularly relevant to a proper interpretation of the "in commerce" language in § 7 of the Clayton Act, since both sections were enacted by the 63d Congress, and both were designed to deal with closely related aspects of the same problem -- the protection of free and fair competition in the Nation's marketplaces. See FTC v. Raladam Co., 283 U. S. 643, 283 U. S. 647-648.The Government argues, however, that, despite its basic identity to § 5 of the Federal Trade Commission Act, the phrase "engaged in commerce" in § 7 of the Clayton Act should be interpreted to mean engaged in any activity that is subject to the constitutional power of Congress over interstate commerce. The legislative history of the Clayton Act, the Government contends, demonstrates that the "in commerce" language of § 7 was intended to be coextensive with the reach of congressional power under the Commerce Clause. Moreover, the argument continues, § 7 was designed to supplement the Page 422 U. S. 278 Sherman Act and to arrest the creation of trusts or monopolies in their incipiency, United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 353 U. S. 589, and it would be anomalous, in light of this history and purpose, to hold that the Clayton Act's jurisdictional scope is more restricted than that of the Sherman Act.It is certainly true that the Court has held that, in the Sherman Act, "Congress wanted to go to the utmost extent of its Constitutional power in restraining trust and monopoly agreements. . . ." United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 322 U. S. 558. Accordingly, the Sherman Act has been applied to local activities which, although not themselves within the flow of interstate commerce, substantially affect interstate commerce. See, e.g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219; United States v. Employing Plasterers Assn., 347 U. S. 186. But the Government's argument that § 7 should likewise be read to reach intrastate corporations affecting interstate commerce is not persuasive.Unlike § 7, with its precise "in commerce" language, § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, prohibits every contract, combination, or conspiracy "in restraint of trade or commerce among the several States. . . ." "The jurisdictional reach of § 1 thus is keyed directly to effects on interstate markets and the interstate flow of goods." Gulf Oil Corp. v. Copp Paving Co., 419 U.S. at 419 U. S. 194. No similar concern for the impact of intrastate conduct on interstate commerce is evident in § 7's "engaged in commerce" requirements.The Government's contention that it would be anomalous for Congress to have strengthened the antitrust laws by curing perceived deficiencies in the Sherman Act and at the same time to have limited the jurisdictional scope of those remedial provisions founders also on the express Page 422 U. S. 279 language of § 7. Thus, although the Sherman Act proscribes every contract, combination, or conspiracy in restraint of trade or commerce, whether entered into by a natural person, partnership, corporation, or other form of business organization, § 7 of the Clayton Act is explicitly limited to corporate acquisitions. Yet it surely could not be seriously argued that this "anomaly" must be ignored, and § 7 extended to reach an allegedly anticompetitive acquisition of partnership assets. [Footnote 7] There is no more justification for concluding that the equally explicit "in commerce" limitation on § 7's reach should be disregarded.More importantly, whether or not Congress, in enacting the Clayton Act in 1914, intended to exercise fully its power to regulate commerce, and, whatever the understanding of the 63d Congress may have been as to the extent of its Commerce Clause power, the fact is that, Page 422 U. S. 280 when § 7 was reenacted in 1950, the phrase "engaged in commerce" had long since become a term of art, indicating a limited assertion of federal jurisdiction. In Schechter Corp. v. United States, 295 U. S. 495, for example, the Court had drawn a sharp distinction between activities in the flow of interstate commerce and intrastate activities that affect interstate commerce. Id. at 295 U. S. 542-544. Similarly, the Court's opinion in NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, two years later, had emphasized that congressional authority to regulate commerce was not limited to activities actually "in commerce," but extended as well to conduct that substantially affected interstate commerce. And the Bunte Bros. decision in 1941 had stressed the distinction between unfair methods of competition "in commerce" and those that "affected commerce," in limiting the scope of the Commission's authority under the "in commerce" language of § 5 of the Federal Trade Commission Act.Congress, as well, in the years prior to 1950, had repeatedly acknowledged its recognition of the distinction between legislation limited to activities "in commerce," and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce. Section 10(a) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U.S.C. § 160(a), for example, empowered the National Labor Relations Board to prevent any person from engaging in an unfair labor practice "affecting commerce." Section 2(7) of the Act, 49 Stat. 450, as amended, 29 U.S.C. § 152(7), in turn, defined "affecting commerce" to mean "in commerce, or burdening or obstructing commerce or the free flow of commerce. . . ." Similarly, the Bituminous Coal Act of 1937, c. 127, 60 Stat. 72, providing for the fixing of prices for bituminous coal, the proscription of unfair trade practices, and the establishment of marketing procedures, Page 422 U. S. 281 applied to sales and transactions "in or directly affecting interstate commerce in bituminous coal." 50 Stat. 76.In marked contrast to the broad "affecting commerce" jurisdictional language utilized in those statutes, however, Congress retained the narrower "in commerce" formulation when it amended and reenacted § 7 of the Clayton Act in 1950. The 1950 amendments were designed in large part to "plug the loophole" that existed in § 7 as initially enacted in 1914 by expanding its coverage to include acquisitions of assets, as well as acquisition of stock. In addition, other language in § 7 was amended to make plain the full reach of the section's prohibitions. See Brown Shoe Co. v. United States, 370 U. S. 294, 370 U. S. 311-323. Yet, despite the sweeping changes made to effectuate those purposes, and despite decisions of this Court, such as Bunte Bros., that had limited the reach of the phrase "in commerce" in similar regulatory legislation, Congress preserved the requirements that both the acquiring and the acquired companies be "engage in commerce."This congressional action cannot be disregarded, as the Government would have it, as simply a result of congressional inattention, for Congress was fully aware in enacting the 1950 amendments that both the original and the newly amended versions of § 7 were limited to corporations "engaged in commerce." See, e.g., H.R.Rep. No. 1191, 81st Cong., 1st Sess., 5-6. Rather, the decision to reenact § 7 with the same "in commerce" limitation can be rationally explained only in terms of a legislative intent, at least in 1950, not to apply the rather drastic prohibitions of § 7 of the Clayton Act to the full range of corporations potentially subject to the commerce power.Finally, the Government's contention that a limitation of the scope of § 7 to its plain meaning would undermine Page 422 U. S. 282 the section's remedial purpose is belied by the past enforcement policy of the Federal Trade Commission and the Department of Justice -- the two governmental agencies charged with enforcing the section's prohibitions. Clayton Act §§ 11, 15, 15 U.S.C. §§ 21(a), 25. The Federal Trade Commission has repeatedly held that § 7 applies only to an acquisition in which both the acquired and the acquiring companies are engaged directly in interstate commerce. E.g., Foremost Dairies, Inc., 60 F.T.C. 944, 1068-1069; Beatrice Foods Co., 67 F.T.C. 473, 730-731; Mississippi Rive Fuel Corp., 75 F.T.C. 813, 918. And while the Government explains that it has never taken a formal position that § 7 does not apply to intrastate firms affecting interstate commerce, it does concede that previous § 7 cases brought by the Department of Justice have invariably involved firms clearly engaged in the flow of interstate commerce. [Footnote 8] In light of this consistent enforcement practice, it is difficult to credit the argument that § 7's remedial purpose would be frustrated by construing literally § 7's twice-enacted "in commerce" requirement. Page 422 U. S. 283In sum, neither the legislative history nor the remedial purpose of § 7 of the Clayton Act, as amended and reenacted in 1950, supports an expansion of the scope of § 7 beyond that defined by its express language. Accordingly, we hold that the phrase "engaged in commerce," as used in § 7 of the Clayton Act, means engaged in the flow of interstate commerce, and was not intended to reach all corporations engaged in activities subject to the federal commerce power.IIIThe Government alternatively argues that, even if § 7 applies only to corporations engaged in the flow of interstate commerce, the Benton companies' activities at the time of the acquisition and merger placed them in that flow. To support this contention, the Government relies primarily on the fact that the Benton companies performed a substantial portion of their janitorial services for enterprises which were themselves clearly engaged in selling products in interstate and international markets and in providing interstate communication facilities. [Footnote 9] But simply supplying localized services to a corporation engaged in interstate commerce does not satisfy the "in commerce" requirement of § 7.To be engaged "in commerce" within the meaning of § 7, a corporation must itself be directly engaged in the production, distribution, or acquisition of goods or services in interstate commerce. See Gulf Oil Corp. v. Copp Paving Co., 419 U.S. at 419 U. S. 195. At the time of the acquisition and merger, however, the Benton companies were completely insulated from any direct participation Page 422 U. S. 284 in interstate markets or the interstate flow of goods or services. The firms' activities were limited to providing janitorial services within Southern California to corporations that made wholly independent pricing decisions concerning their own products. Consequently, whether or not their effect on interstate commerce was sufficiently substantial to come within the ambit of the constitutional power of Congress under the Commerce Clause, in providing janitorial services the Benton companies were not themselves "engaged in commerce" within the meaning of § 7. Cf. Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. at 334 U. S. 227-235. [Footnote 10] Page 422 U. S. 285Similarly, although the Benton companies used janitorial equipment and supplies manufactured in large part outside of California, they did not purchase them directly from suppliers located in other States. Cf. Foremost Dairies, Inc., 60 F.T.C. at 1068-1069. Rather, those products were purchased in intrastate transactions from local distributors. Once again, therefore, the Benton companies were separated from direct participation in interstate commerce by the pricing and other marketing decisions of independent intermediaries. By the time the Benton companies purchased their janitorial supplies, the flow of commerce had ceased. See Schechter Corp. v. United States, 295 U.S. at 295 U. S. 542-543. [Footnote 11]In short, since the Benton companies did not participate directly in the sale, purchase, or distribution of goods or services in interstate commerce, they were not "engaged in commerce" within the meaning of § 7 of the Clayton Act. [Footnote 12] The District Court, therefore, properly Page 422 U. S. 286 concluded that the acquisition and merger in this case were not within the coverage of § 7 of the Clayton Act. The judgment of the District Court is affirmed.It is so ordered

U.S. Supreme CourtUnited States v. American Bldg. Maint. Indus., 422 U.S. 271 (1975)United States v. American Building Maintenance IndustriesNo. 73-1689Argued April 22, 1975Decided June 24, 1975422 U.S. 271SyllabusThe Government brought this civil antitrust action against appellee, one of the largest suppliers of janitorial services in the country, with 56 branches serving more than 500 communities in the United States and Canada, and providing about 10% of such service sales in Southern California, contending that appellee's acquisition of two Southern California janitorial service firms (the Benton companies), which supplied about 7% of such services in Southern California, violated § 7 of the Clayton Act. That section provides that"[n]o corporation engaged in commerce shall acquire . . . the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire . . . the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly."The Benton companies, some of whose customers engaged in interstate operations, performed all their services within California, locally recruited labor (which accounted for their major expenses) and locally purchased incidental equipment and supplies. The District Court granted appellee's motion for summary judgment, holding that there had been no § 7 violation. The Government contends that "engaged in commerce." as used in § 7. encompasses corporations like the Benton companies engaged in intrastate activities that substantially affect interstate commerce, and that, in any event, the Benton companies' activities were sufficiently interstate to come within § 7.Held:1. The phrase "engaged in commerce," as used in § 7 of the Clayton Act, means engaged in the flow of interstate commerce, and was not intended to reach all corporations engaged in activities subject to the federal commerce power; hence, the phrase does not encompass corporations engaged in intrastate activities substantially affecting interstate commerce, and § 7 can be applicable only when both the acquiring corporation and the acquired Page 422 U. S. 272 corporation are engaged in interstate commerce. Pp. 422 U. S. 275-283.(a) The jurisdictional requirements of § 7 cannot be satisfied merely by showing that allegedly anticompetitive acquisitions and activities affect commerce. Gulf Oil Corp. v. Copp Paving CO., 419 U. S. 186; FTC v. Bunte Bros., 312 U. S. 349. Pp. 422 U. S. 276-277.(b) The precise "in commerce" language of § 7 is not coextensive with the reach of power under the Commerce Clause, and is thus not to be equated with § 1 of the Sherman Act, which reaches the impact of intrastate conduct on interstate commerce. Pp. 422 U. S. 277-279.(c) When Congress reenacted § 7 in 1950 with the same "engaged in commerce" limitation, the phrase had long since become a term of art, indicating a limited assertion of federal jurisdiction, and, prior to that time, Congress had frequently distinguished between activities "in commerce" and broader activities "affecting commerce." Pp. 422 U. S. 279-281.(d) Limiting § 7 to its plain meaning comports with the enforcement policies that the FTC and the Justice Department have consistently pursued. Pp. 422 U. S. 281-282.2. Since the Benton companies did not participate directly in the sale, purchase, or distribution of goods or services in interstate commerce, they were not "engaged in commerce" within the meaning of § 7. And neither supplying local services to corporations engaged in interstate commerce nor using locally bought supplies manufactured outside California sufficed to satisfy § 7's "in commerce" requirement. Pp. 422 U. S. 283-286.401 F. Supp. 1005, affirmed.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and MARSHALL, POWELL, and REHNQUIST, JJ., joined, and in all but Part III of which WHITE, J., joined. WHITE, J., filed a concurring opinion, post, p. 422 U. S. 286. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 422 U. S. 286. BLACKMUN, J., filed a dissenting opinion, post, p. 422 U. S. 287. Page 422 U. S. 273

1960_55

MR. JUSTICE BRENNAN delivered the opinion of the Court.The United States filed this action in 1949 in the District Court for the Northern District of Illinois. The complaint alleged that the ownership and use by appellee E. I. du Pont de Nemours & Co. of approximately 23 percent of the voting common stock of appellee General Motors Corporation was a violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and of section 7 of the Clayton Act, 15 U.S.C. § 18. After trial, the District Court dismissed the complaint. D.C.N.D.Ill.1954, 126 F. Supp. 235. On the Government's appeal, we reversed. We held that du Pont's acquisition of the 23 percent of General Motors stock had led to the insulation from free competition of Page 366 U. S. 319 most of the General Motors market in automobile finishes and fabrics, with the resultant likelihood, at the time of suit, of the creation of a monopoly of a line of commerce, and, accordingly, that du Pont had violated § 7 of the Clayton Act. United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586 (1957). [Footnote 1] We did not, however, determine what equitable relief was necessary in the public interest. Instead, we observed that"[t]he District Courts . . . are clothed 'with large discretion to model their judgments to fit the exigencies of the particular case.' International Salt Co. v. United States, 332 U. S. 392, 332 U. S. 400-401,"and remanded the cause to the District Court"for a determination, after further hearing, of the equitable relief necessary and appropriate in the public interest to eliminate the effects of the acquisition offensive to the statute."353 U.S. at 353 U. S. 607-608.On remand, the District Court invited the Government to submit a plan of relief which, in its opinion, would be effective to remedy the violation. The court also appointed two amici curiae to represent the interests of General Motors and du Pont shareholders, respectively, most of whom, of course, had not been made parties to this litigation. The Government submitted a proposed plan of relief. That plan included diverse forms of injunctive relief, but its principal feature was a requirement that, within 10 years, the du Pont company completely divest itself of its approximately 63 million General Motors shares. The Government proposed that about two-thirds of these shares be distributed pro rata to the generality of du Pont shareholders in the form of dividends over the 10-year period. The other one-third of du Pont's General Motors holdings -- stock which Page 366 U. S. 320 would have gone to appellees Christiana Securities Company and Delaware Realty and Investment Company, holding companies long identified with the du Pont family itself -- were to go to a court-appointed trustee, to be sold gradually over the same 10-year period. Du Pont objected that the Government's plan of complete divestiture entailed harsh income tax consequences for du Pont stockholders and, if adopted, would also threaten seriously to depress the market value of du Pont and General Motors stock. Du Pont therefore proposed its own plan designed to avoid these results. The salient feature of its plan was substitution for the Government's proposed complete divestiture of a plan for partial divestiture in the form of a so-called "pass through" of voting rights, whereby du Pont would retain all attributes of ownership of the General Motors stock, including the right to receive dividends and a share of assets on liquidation, except the right to vote. The vote was to be "passed through" to du Pont's shareholders proportionally to their holdings of du Pont's own shares, except that Christiana and Delaware would "pass through" the votes allocable to them to their own shareholders. The amici curiae also proposed plans of compliance, substantially equivalent to the du Pont plan. The amicus representing the generality of du Pont shareholders proposed in addition a program of so-called "take-downs," by which du Pont shareholders would be allowed to exchange their du Pont common stock for a new class of du Pont "Special Common," plus their pro rata share of du Pont-held General Motors common stock.The District Court held several weeks of hearings. The evidence taken at the hearings, largely of expert witnesses, fills some 3,000 pages in the record before us, and, together with the numerous financial charts and tables received as exhibits, bears mainly not on the competition-restoring effect of the several proposals, but Page 366 U. S. 321 rather on which proposal would have the more, and which the less, serious tax and market consequences for the owners of the du Pont and General Motors stock. The District Court concluded that, although". . . there is no need for the Court to resolve the conflict in the evidence as to how severe those consequences would be[, t]he Court is persuaded beyond any doubt that a judgment of the kind proposed by the Government would have very serious adverse consequences."D.C.N.D.Ill.1959, 177 F. Supp. 1, 42. The court for this reason rejected the Government's plan and adopted the du Pont proposal, with some significant modifications. The "pass through" of voting rights, for example, was so limited that neither Christiana, Delaware, nor their officers and directors (plus resident members of the latter's families), should be able to vote any of the du Pont-held General Motors stock; General Motors shares allocable to the two companies or to their officers and directors, or to the officers and directors of du Pont, or to resident members of the families of the officers and directors of the several companies, were to be sterilized, voted by no one. Du Pont, Christiana, and Delaware were forbidden to acquire any additional General Motors stock. Du Pont and General Motors might not have any preferential or discriminatory trade relations or contracts with each other. No officer or director of du Pont, Christiana, or Delaware might also serve as an officer or director of General Motors. Nor might du Pont, Christiana, or Delaware nominate or propose any person to be a General Motors officer or director, or seek in any way to influence the choice of persons to fill those posts. The Government objected that, without a provision ordering complete divestiture, the decree, although otherwise satisfactory, was inadequate to redress the antitrust violation, and filed its appeal here under § 2 of the Expediting Act, 15 U.S.C. § 29. We noted probable jurisdiction. 362 U.S. 986 (1960). Page 366 U. S. 322A threshold question -- and one which, although subsidiary, is most important -- concerns the scope of our review of the District Court's discharge of the duty delegated by our judgment to formulate a decree. In our former opinion, we alluded to the "large discretion" of the District Courts in matters of remedy in antitrust cases. Many opinions of the Court in such cases observe that "[t]he formulation of decrees is largely left to the discretion of the trial court . . . ," Maryland & Virginia Milk Producers Ass'n v. United States, 362 U. S. 458, 362 U. S. 473 (1960); "[i]n framing relief in antitrust cases, a range of discretion rests with the trial judge," Besser Mfg. Co. v. United States, 343 U. S. 444, 343 U. S. 449 (1952); "[t]he determination of the scope of the decree to accomplish its purpose is peculiarly the responsibility of the trial court," United States v. United States Gypsum Co., 340 U. S. 76, 340 U. S. 89 (1950); "[t]he framing of decrees should take place in the District rather than in Appellate Courts," International Salt Co. v. United States, 332 U. S. 392, 332 U. S. 400 (1947). The Court has on occasion said that decrees will be upheld in the absence of a showing of an abuse of discretion. See, e.g., Maryland & Virginia Milk Producers Ass'n v. United States, supra, p. 362 U. S. 473; United States v. W. T. Grant Co., 345 U. S. 629, 345 U. S. 634 (1953); Timken Roller Bearing Co. v. United States, 341 U. S. 593 (1951); [Footnote 2] United States v. National Lead Co., 332 U. S. 319, 332 U. S. 334-335 (1947); United States v. Crescent Amusement Co., 323 U. S. 173, 323 U. S. 185 (1944). [Footnote 3] These Page 366 U. S. 323 expressions are not, however, to be understood to imply a narrow review here of the remedies fashioned by the District Courts in antitrust cases. On the contrary, our practice, particularly in cases of a direct appeal from the decree of a single judge, is to examine the District Court's action closely to satisfy ourselves that the relief is effective to redress the antitrust violation proved."The relief granted by a trial court in an antitrust case and brought here on direct appeal, thus by-passing the usual appellate review, has always had the most careful scrutiny of this Court. Though the records are usually most voluminous and their review exceedingly burdensome, we have painstakingly undertaken it to make certain that justice has been done."International Boxing Club v. United States, 358 U. S. 242, 358 U. S. 253 (1959); see also id. at 358 U. S. 263 (dissenting opinion). We have made it clear that a decree formulated by a District Court is not"subject only to reversal for gross abuse. Rather, we have felt an obligation to intervene in this most significant phase of the case when we concluded there were inappropriate provisions in the decree."United States v. United States Gypsum Co., supra, p. 340 U. S. 89.In sum, we assign to the District Courts the responsibility initially to fashion the remedy, but recognize that, while we accord due regard and respect to the conclusion of the District Court, we have a duty ourselves to be sure that a decree is fashioned which will effectively redress proved violations of the antitrust laws. The proper disposition of antitrust cases is obviously of great public importance, and their remedial phase, more often than not, is crucial. For the suit has been a futile exercise if the Government proves a violation but fails to secure a remedy adequate to redress it."A public interest served by such civil suits is that they effectively pry open to competition a market that has been closed by defendants' illegal restraints. If this decree accomplishes Page 366 U. S. 324 less than that, the Government has won a lawsuit and lost a cause."International Salt Co. v. United States, supra, p. 332 U. S. 401.Our practice reflects the situation created by the congressional authorization, under § 2 of the Expediting Act, [Footnote 4] of a direct appeal to this Court from the judgment of relief fashioned by a single judge. Congress has deliberately taken away the shield of intermediate appellate review by a Court of Appeals, and left with us alone the responsibility of affording the parties a review of his determination. [Footnote 5] This circumstance imposes a special burden upon us, for, as Mr. Justice Roberts said for the Court,". . . it is unthinkable that Congress has entrusted the enforcement of a statute of such far-reaching Page 366 U. S. 325 importance to the judgment of a single judge, without review of the relief granted or denied by him,"Hartford-Empire Co. v. United States, 324 U. S. 570, 324 U. S. 571 (1945), clarifying 323 U. S. 386 (1945).These principles alone would require our close examination of the District Court's action. But the necessity for that examination in this case further appears in the light of additional considerations. First of all, the decree was fashioned in obedience to the judgment which we sent down to the District Court after our reversal of that court's dismissal of the Government's complaint. We have plenary power to determine whether our judgment was scrupulously and fully carried out. Chief Justice Taft, speaking for the Court, said in Continental Ins. Co. v. United States, 259 U. S. 156, 259 U. S. 166 (1922),"We delegated to the District Court the duty of formulating a decree in compliance with the principles announced in our judgment of reversal, and that gives us plenary power, where the compliance has been attempted and the decree in any proper way is brought to our attention, to see that it follows our opinion. [Footnote 6]"Secondly, the record is concerned mainly with the alleged adverse tax and market effects of the Government's proposal for complete divestiture. But the primary focus of inquiry, as we shall show, is upon the question of the relief required effectively to eliminate the tendency of the acquisition condemned by § 7. For it will be remembered that the violation was not actual monopoly, but only a tendency towards Page 366 U. S. 326 monopoly. The required relief therefore is a remedy which reasonably assures the elimination of that tendency. Does partial divestiture in the form of the "pass through" of voting power, together with the ancillary relief, give an effective remedy, or is complete divestiture necessary to assure effective relief? Little in the record or in the District Court's opinion is concerned with that crucial question. The findings of possible harsh consequences relied upon to justify rejection of complete divestiture are thus hardly of material assistance in reaching judgment on the central issue. If our examination persuades us that the remedy decreed leaves the public interest in the elimination of the tendency inadequately protected, we should be derelict in our duty if we did not correct the error.Before we examine the adequacy of the relief allowed by the District Court, it is appropriate to review some general considerations concerning that most drastic, but most effective, of antitrust remedies -- divestiture. The key to the whole question of an antitrust remedy is, of course, the discovery of measures effective to restore competition. Courts are not authorized in civil proceedings to punish antitrust violators, and relief must not be punitive. But courts are authorized, indeed required, to decree relief effective to redress the violations, whatever the adverse effect of such a decree on private interests. Divestiture is itself an equitable remedy designed to protect the public interest. In United States v. Crescent Amusement Co., supra, where we sustained divestiture provisions against an attack similar to that successfully made below, we said at p. 323 U. S. 189:"It is said that these provisions are inequitable and harsh income tax-wise, that they exceed any reasonable requirement for the prevention of future violations, and that they are therefore punitive. . . . Those who violate the Act may not reap Page 366 U. S. 327 the benefits of their violations and avoid an undoing of their unlawful project on the plea of hardship or inconvenience. [Footnote 7]"If the Court concludes that other measures will not be effective to redress a violation, and that complete divestiture is a necessary element of effective relief, the Government cannot be denied the latter remedy because economic hardship, however severe, may result. Economic hardship can influence choice only as among two or more effective remedies. If the remedy chosen is not effective, it will not be saved because an effective remedy would entail harsh consequences. This proposition is not novel; it is deeply rooted in antitrust law, and has never been successfully challenged. [Footnote 8] The criteria were announced in one of the earliest cases. In United States v. American Tobacco Co., 221 U. S. 106, 221 U. S. 185 (1911), we said:"In considering the subject . . . , three dominant influences must guide our action: 1, the duty of giving complete and efficacious effect to the prohibitions of the statute; 2, the accomplishing of this result with as little injury as possible to the interest Page 366 U. S. 328 of the general public; and, 3, a proper regard for the vast interests of private property which may have become vested in many persons as a result of the acquisition either by way of stock ownership or otherwise of interests in the stock or securities of the combination without any guilty knowledge or intent in any way to become actors or participants in the wrongs which we find to have inspired and dominated the combination from the beginning."The Court concluded in that case that, despite the alleged hardship which would be involved, only dissolution of the combination would be effective, and therefore ordered dissolution. Plainly, if the relief is not effective, there is no occasion to consider the third criterion.Thus, in this case, the adverse tax and market consequences which the District Court found would be concomitants of complete divestiture cannot save the remedy of partial divestiture through the "pass through" of voting rights if, though less harsh, partial divestiture is not an effective remedy. We do not think that the "pass through" is an effective remedy and believe that the Government is entitled to a decree directing complete divestiture.It cannot be gainsaid that complete divestiture is peculiarly appropriate in cases of stock acquisitions which violate § 7. [Footnote 9] That statute is specific and "narrowly Page 366 U. S. 329 directed," [Footnote 10] Standard Oil Co. v. United States, 337 U. S. 293, 337 U. S. 312 (1949), and it outlaws a particular form of economic control -- stock acquisitions which tend to create a monopoly of any line of commerce. The very words of § 7 suggest that an undoing of the acquisition is a natural remedy. Divestiture or dissolution has traditionally been the remedy for Sherman Act violations whose heart is intercorporate combination and control, [Footnote 11] and it is reasonable Page 366 U. S. 330 to think immediately of the same remedy when § 7 of the Clayton Act, which particularizes the Sherman Act standard of illegality, is involved. Of the very few litigated [Footnote 12] § 7 cases which have been reported, most decreed divestiture as a matter of course. [Footnote 13] Divestiture Page 366 U. S. 331 has been called the most important of antitrust remedies. [Footnote 14] It is simple, relatively easy to administer, and sure. It should always be in the forefront of a court's mind when a violation of § 7 has been found.The divestiture only of voting rights does not seem to us to be a remedy adequate to promise elimination of the tendency of du Pont's acquisition offensive to § 7. Under the decree, two-thirds of du Pont's holdings of General Motors stock will be voted by du Pont shareholders -- upwards of 40 million shares. Common sense tells us that, under this arrangement, there can be little assurance of the dissolution of the intercorporate community of interest which we found to violate the law. The du Pont shareholders will ipso facto also be General Motors voters. It will be in their interest to vote in such a way as to induce General Motors to favor du Pont, the very result which we found illegal on the first appeal. It may be true, as appellees insist, that these shareholders will not exercise as much influence on General Motors as did du Pont when it held and voted the shares as a block. And it is true that there is no showing in this record that the du Pont shareholders will combine to vote together, or that their information about General Motors' activities will be detailed enough to enable them to vote their shares as strategically as du Pont itself has done. But these arguments misconceive the nature of this proceeding. The burden is not on the Government to show de novo that a "pass through" of the General Motors vote, like du Pont's ownership of General Motors stock, would violate § 7. United States v. Aluminum Co. of America, 91 F. Supp. 333, 346 (D.C.S.D.N.Y.1950). It need only appear that the decree entered leaves a substantial likelihood that the tendency towards monopoly of the acquisition condemned by § 7 has not Page 366 U. S. 332 been satisfactorily eliminated. We are not required to assume, contrary to all human experience, that du Pont's shareholders will not vote in their own self-interest. Moreover, the General Motors management, which over the years has become accustomed to du Pont's special relationship, [Footnote 15] would know that the relationship continues to a substantial degree, and might well act accordingly. The same is true of du Pont's competitors. They might not try so vigorously to break du Pont's hold on General Motors' business, as if complete divestiture were ordered. And finally, the influence of the du Pont company itself would not be completely dissipated. For, under the decree, du Pont would have the power to sell its General Motors shares; the District Court expressly held that "[t]here would be nothing in the decree to prevent such dispositions." 177 F. Supp. at 41. Such a sale would presumably restore the vote separated from the sold stock while du Pont owned it. This power to transfer the vote could conceivably be used to induce General Motors to favor du Pont products. In sum, the "pass through" of the vote does not promise elimination of the violation offensive to § 7. What was said of the Sherman Act in United States v. Union Pacific R. Co., 226 U. S. 470, 226 U. S. 477 (1913), applies here:"So far as is consistent with this purpose a court of equity, dealing with such combinations, should conserve the property interests involved, but never in such wise as to sacrifice the object and purpose of the statute. The decree of the courts must be faithfully executed, and no form of dissolution be permitted that, in substance or effect, amounts to restoring the Page 366 U. S. 333 combination which it was the purpose of the decree to terminate."Du Pont replies, inter alia, that it would be willing for all of its General Motors stock to be disenfranchised if that would satisfy the requirement for effective relief. This suggestion, not presented to the District Court, is distinctly an afterthought. If the suggestion is disenfranchisement only while du Pont retains the stock, it would not avoid the hazards inherent in du Pont's power to transfer the vote. If the suggestion is permanent loss of the vote, it would create a large and permanent separation of corporate ownership from control, which would not only run directly counter to accepted principles of corporate democracy, but also reduce substantially the number of voting General Motors shares, thereby making it easier for the owner of a block of shares far below an absolute majority to obtain working control, perhaps creating new antitrust problems for both General Motors and the Department of Justice in the future. And finally, we should be reluctant to effect such a drastic change in General Motors' capital structure, established under state corporation law.Appellees argue further that the injunctive provisions of the decree supplementary to the "pass through" of voting rights adequately remove any objections to the effectiveness of the "pass through." Du Pont is enjoined, for example, from in any way influencing the choice of General Motors' officers and directors, and from entering into any preferential trade relations with General Motors. And, under IX of the decree, the Government may reapply in the future should this injunctive relief prove inadequate. Presumably, this provision could be used to prevent the exercise of the power to transfer the vote. But the public interest should not in this case be required to depend upon the often cumbersome and Page 366 U. S. 334 time-consuming injunctive remedy. Should a violation of one of the prohibitions be thought to occur, the Government would have the burden of initiating contempt proceedings and of proving by a preponderance of the evidence that a violation had indeed been committed. [Footnote 16] Such a remedy would, judging from the history of this litigation, take years to obtain. Moreover, an injunction can hardly be detailed enough to cover in advance all the many fashions in which improper influence might manifest itself. And the policing of an injunction would probably involve the courts and the Government in regulation of private affairs more deeply than the administration of a simple order of divestiture. [Footnote 17] We think the public is entitled to the surer, cleaner remedy of divestiture. The same result would follow even if we were in doubt. For it is well settled that, once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor. [Footnote 18]We therefore direct complete divestiture. Since the District Court's decree was framed around the provision directing only partial divestiture, and since General Motors, Christiana, and Delaware acquiesced in its provisions only on that basis, we shall not pass upon the provisions for ancillary relief, but shall vacate the decree Page 366 U. S. 335 in its entirety except as to the provisions of VI enjoining du Pont itself from exercising voting rights in respect of its General Motors stock. In this way, the District Court will be free to fashion a new decree consistent with this opinion at a new hearing at which all parties may be heard. General Motors, Christiana, and Delaware will thus be able to renew, for the District Court's decision in the first instance, any objections they may have to the power of the Court to grant relief against them.We believe, however, that this already protracted litigation should be concluded as soon as possible. To that end, we direct the District Court, on receipt of our judgment, to enter an order requiring du Pont to file within 60 days a proposed judgment providing for complete divestiture of its General Motors stock, to commence within 90 days, and to be completed within not to exceed 10 years, of the effective date of the District Court's judgment, and requiring the Government to file, within 30 days after service upon it of du Pont's proposed judgment, either proposed specific amendments to such du Pont judgment or a proposed alternative judgment of divestiture. The District Court shall give precedence to this cause on its calendar.The judgment of the District Court, except to the extent VI is affirmed, is vacated and remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. E.I. du Pont de Nemours & Co., 366 U.S. 316 (1961)United States v. E.I. du Pont de Nemours & Co.No. 55Argued February 20-21, 1961Decided May 22, 1961366 U.S. 316SyllabusIn this civil antitrust proceeding, this Court held that acquisition by the du Pont Company of 23% of the common stock of General Motors Corporation had led to the insulation from free competition of most of the General Motors market in automobile finishes and fabrics and tended to create a monopoly of a line of commerce, in violation of § 7 of the Clayton Act. Therefore, this Court reversed the District Court's judgment dismissing the complaint and remanded the case to that Court for a determination of the equitable relief necessary and appropriate in the public interest. 353 U. S. 353 U.S. 586. After the taking of further evidence, pertaining mostly to the tax and market consequences to the shareholders of the two companies, the District Court declined to require du Pont to divest itself completely of the General Motors stock, as urged by the Government, and sought to satisfy the requirements of this Court's mandate by requiring du Pont to transfer its voting rights in most of the General Motors stock to certain of du Pont's shareholders, by enjoining the two companies from having any preferential or discriminatory trade relations with each other, and by various other injunctive provisions designed to prevent du Pont from exercising any control over the management of General Motors.Held: this remedy is not adequate, and the District Court is directed to proceed expeditiously to enter a decree requiring du Pont to divest itself completely of the General Motors stock within not to exceed 10 years from the effective date of the decree. Pp. 366 U. S. 318-335.(a) When a violation of the antitrust laws has been proved, the initial responsibility to fashion an appropriate remedy lies with the District Court, and this Court accords due regard and respect to the conclusion of the District Court; but this Court has a duty to be sure that a decree is fashioned which will effectively redress the violations of the antitrust laws. Pp. 366 U. S. 322-325.(b) Since the decree in this case was fashioned by the District Court in obedience to the judgment sent to it by this Court after reversal of the District Court's judgment dismissing the Government's Page 366 U. S. 317 complaint, this Court has plenary power to determine whether its own judgment was scrupulously and fully carried out. Pp. 366 U. S. 325-326.(c) In civil proceedings, courts are not authorized to punish antitrust violators, and relief must not be punitive; but courts are required to decree relief effective to redress the violations and restore competition, whatever the adverse effect of such a decree on private interests. Pp. 366 U. S. 326-328.(d) In this case, the proposed partial divestiture through the transfer of voting rights would not be an effective remedy; and, notwithstanding the adverse tax and market consequences which the District Court found would result, the Government is entitled to a decree directing complete divestiture -- a remedy peculiarly appropriate in cases of stock acquisitions which violate § 7 of the Clayton Act. Pp. 366 U. S. 326-333.(e) The alternative, suggested belatedly by du Pont, that its General Motors stock be disenfranchised, would not provide effective relief, and it might have undesirable effects on the capital structure, management and control of General Motors. P. 366 U. S. 333.(f) The injunctive provisions of the District Court's decree would not adequately remove the objections to the effectiveness of its main provision for the transfer of voting rights, and the public is entitled to the surer, cleaner remedy of complete divestiture. Pp. 366 U. S. 333-334.(g) Once the Government has successfully borne the considerable burden of establishing a violation of the antitrust laws, all doubts as to the remedy are to be resolved in its favor. P. 366 U. S. 334.(h) The District Court's decree is vacated in its entirety, except as to the provisions enjoining du Pont itself from exercising voting rights in respect of its General Motors stock. Pp. 366 U. S. 334-335.(i) In order that this protracted litigation may be concluded as soon as possible, the District Court is directed to proceed expeditiously to formulate and enter a decree providing for the complete divestiture by du Pont of its General Motors stock, to commence within 90 days, and to be completed within not to exceed 10 years, of the effective date of the decree. P. 366 U. S. 335.177 F. Supp. 1 affirmed in part, vacated in part, and remanded for further proceedings. Page 366 U. S. 318

1991_91-542

Maureen E. Mahoney, Deputy Solicitor General, argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Roberts.Steven H. Goldblatt argued the cause and filed a brief for respondent. **Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and Richard B. Martell, Assistant Attorney General, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney General of California, Gale A. Norton, Attorney General of Colorado, Richard N. Palmer, Chief State's Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Michael J. Bowers, Attorney General of Georgia, Warren Price III, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Linley E. Pearson, Attorney General of Indiana, Bonnie J. Campbell, Attorney General of Iowa, Robert T. Stephen, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, J. Joseph Curran, Jr., Attorney General of Maryland, Hubert H. Humphrey III, Attorney General of Minnesota, Michael C. Moore, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, John P. Arnold, Attorney General of New Hampshire, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Susan B. Loving, Attorney General of Oklahoma, Charles S. Crookham, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, T. Travis Medlock, Attorney General of South Carolina, Mark Barnett, Attorney General of South Dakota, Dan Morales, Attorney General of Texas, Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Kenneth O. Eikenberry, Attorney General of Washington, Mario J. Palumbo, Attorney General of West Virginia, and Joseph B. Meyer, Attorney General of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.Leslie A. Harris, Steven R. Shapiro, and John A. Powell filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.Briefs of amici curiae were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Lee Fisher, Attorney280Opinion of THOMAS, J.JUSTICE THOMAS announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and JUSTICE SCALIA joined.In this case, we must determine whether the Court of Appeals for the Fourth Circuit correctly applied our decision in Jackson v. Virginia, 443 U. S. 307 (1979), in concluding that the evidence against respondent Frank West was insufficient, as a matter of due process, to support his state-court conviction for grand larceny.IBetween December 13 and December 26, 1978, someone broke into the Westmoreland County, Virginia, home of Angelo Card ova and stole items valued at approximately $3,500. On January 10, 1979, police conducted a lawful search of the Gloucester County, Virginia, home of West and his wife. They discovered several of the items stolen from the Cardova home, including various electronic equipment (two television sets and a record player); articles of clothing (an imitation mink coat with the name "Esther" embroidered in it, a silk jacket emblazoned "Korea 1970," and a pair of shoes); decorations (several wood carvings and a mounted lobster); and miscellaneous household objects (a mirror framed with seashells, a coffee table, a bar, a sleeping bag, and some silverware). These items were valued at approximately $800, and the police recovered other, unspecified items of Cardova's property with an approximate value of $300.West was charged with grand larceny. Testifying at trial on his own behalf, he admitted to a prior felony conviction, but denied having taken anything from Cardova's house.General of Ohio, Jerry Boone, Solicitor General of New York, Peter H. Schiff, Deputy Solicitor General, and Martin A. Hotvet, Assistant Attorney General; for Senator Biden et al. by William F. Sheehan and Christopher E. Palmer; for the American Bar Association by Talbot D'Alemberte and Seth P. Waxman; for Benjamin R. Civiletti et al. by Douglas G. Robinson and James S. Liebman; and for Gerald Gunther et al. by Larry W Yackle.281He explained that he had bought and sold "a lot of ... merchandise" from "several guys" at "flea bargain places" where, according to West, "a lot of times you buy things ... that are stolen" although "you never know it." App. 21. On crossexamination, West said that he had bought many of the stolen items from a Ronnie Elkins, whom West claimed to have known for years. West testified that he purchased one of the wood carvings, the jacket, mounted lobster, mirror, and bar from Elkins for about $500. West initially guessed, and then twice positively asserted, that this sale occurred before January 1, 1979. In addition, West claimed to have purchased the coat from Elkins for $5 around January 1, 1979. His testimony did not make clear whether he was describing one transaction or two, whether there were any other transactions between himself and Elkins, where the transactions occurred, and whether the transactions occurred at flea markets.1 West testified further that he had purchased one of1 The quality of West's testimony on these matters can best be appreci-ated by example:"Q Are those items that you bought at a flea market?"A Well, I didn't buy these items at a flea market, no sir. "Q Whose items are they?"A They are some items that I got from a Ronnie Elkins. "Q All of the items you bought from him?"A I can't say all."Q Which ones did you buy from him?"A I can't say, because I don't have an inventory."Q Can you tell me the ones you bought from Ronnie Elkins? "A Yes, I am sure I can."Q Which ones?"A I would say the platter."Q How about the sea shell mirror? "A Yes, sir, I think so."Q Where did you buy that?"A In Newport News at a flea market." App.21-22."Q I want to know about your business transactions with Ronnie Elkins.[Footnote 1 is continued on p. 282J282Opinion of THOMAS, J.the television sets in an entirely separate transaction in Goochland County, from an individual whose name he had forgotten. Finally, West testified that he did not remember how he had acquired the second television, the coffee table, and the silverware.Under then-applicable Virginia law, grand larceny was defined as the wrongful and nonconsensual taking of property worth at least $100, with the intent to deprive the owner of it permanently. See Va. Code Ann. § 18.2-95 (1975); Skeeter v. Commonwealth, 217 Va. 722, 725, 232 S. E. 2d 756, 758 (1977). Virginia law permits an inference that a person who fails to explain, or falsely explains, his exclusive possession of recently stolen property is the thief. See, e. g., Moehring v. Commonwealth, 223 Va. 564, 568, 290 S. E. 2d 891, 893 (1982); Best v. Commonwealth, 222 Va. 387, 389, 282 S. E. 2d 16, 17 (1981). The trial court instructed the jurors about this permissive inference, but warned that the inference did not compromise their constitutional obligation to acquit unless they found that the State had established every element"A I buy and sell different items from different individuals at fleamarkets."Q Tell us where that market is."A In Richmond. You have them in Gloucester. "Q Where is Ronnie Elkins' flea market?"A He does not have one."Q Didn't you say you bought some items from Ronnie Elkins? "A At a flea market."Q Tell the jury where that is at [sic]. "A In Gloucester."Q Tell the jury about this flea market and Ronnie Elkins, some time around January 1, and these items, not the other items."A Ronnie Elkins does not own a flea market."Q Tell the jury, if you will, where Ronnie Elkins was on the day thatyou bought the items?"A I don't remember. It was before January 1. "Q Where was it?"A I bought stuff from him in Richmond, Gloucester, and Newport News." Id., at 26-27.283of the crime beyond a reasonable doubt. See In re Winship, 397 U. S. 358 (1970).2The jury returned a guilty verdict, and West received a 10-year prison sentence. West petitioned for an appeal, contending (among other things) that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. In May 1980, the Supreme Court of Virginia refused the petition-a disposition indicating that the court found the petition without merit, see Saunders v. Reynolds, 214 Va. 697, 700,204 S. E. 2d 421, 424 (1974). Seven years later, West filed a petition for a writ of habeas corpus in the same court, supported by an affidavit executed by Ronnie Elkins in April 1987. West renewed his claim that the original trial record contained insufficient evidence to support the conviction, and he argued in the alternative that Elkins' affidavit, which tended to corroborate West's trial testimony in certain respects, constituted new evidence entitling him to a new trial. The Supreme Court of Virginia again denied relief. West then filed a petition for a writ of habeas corpus in the District Court for the Eastern District of Virginia, which rejected both claims and denied relief.The Court of Appeals for the Fourth Circuit reversed. 931 F.2d 262 (1991). As the court correctly recognized, a2 The instruction on the permissive inference read:"If you belie[ve] from the evidence beyond a reasonable doubt that property of a value of $100.00 or more was stolen from Angelo F. C[a]rdova, and that it was recently thereafter found in the exclusive and personal possession of the defendant, and that such possession has been unexplained or falsely denied by the defendant, then such possession is sufficient to raise an inference that the defendant was the thief; and if such inference, taking into consideration the whole evidence, leads you to believe beyond a reasonable doubt that the defendant committed the theft, then you shall find the defendant guilty." App. 34.Several other instructions emphasized that despite the permissive inference, "[t]he burden is upon the Commonwealth to prove by the evidence beyond a reasonable doubt every material and necessary element of the offense charged against the defendant." Ibid.284Opinion of THOMAS, J.claim that evidence is insufficient to support a conviction as a matter of due process depends on "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U. S., at 319 (emphasis in original). Five considerations led the court to conclude that this standard was not met: first, the items were recovered no sooner than two weeks after they had been stolen; second, only about a third of the items stolen from Cardova (measured by value) were recovered from West; third, the items were found in West's house in plain view, and not hidden away as contraband; fourth, West's explanation of his possession was not so "inherently implausible," even if it were disbelieved, that it could "fairly be treated as positive evidence of guilt"; and fifth, there was no corroborating evidence (such as fingerprints or eyewitness testimony) beyond the fact of mere possession. See 931 F. 2d, at 268-270. The court viewed West's testimony as "at most, a neutral factor," id., at 270, despite noting his "confusion" about the details of his alleged purchases, id., at 269, and despite conceding that his testimony "at first blush ... may itself seem incredible," id., at 270, n. 7. In holding that the Jackson standard was not met, the court did not take into consideration the fact that the Supreme Court of Virginia had twice previously concluded otherwise.After the Fourth Circuit denied rehearing en banc by an equally divided court, see App. to Pet. for Cert. 34-35, the warden and the State Attorney General sought review in this Court on, among other questions, whether the Court of Appeals had applied Jackson correctly in this case. We granted certiorari, 502 U. S. 1012 (1991), and requested additional briefing on the question whether a federal habeas court should afford deference to state-court determinations applying law to the specific facts of a case, 502 U. S. 1021 (1991). We now reverse.285IIThe habeas corpus statute permits a federal court to entertain a petition from a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. §2254(a). The court must "dispose of the matter as law and justice require." § 2243. For much of our history, we interpreted these bare guidelines and their predecessors to reflect the common-law principle that a prisoner seeking a writ of habeas corpus could challenge only the jurisdiction of the court that had rendered the judgment under which he was in custody. See, e. g., In re Wood, 140 U. S. 278, 285-287 (1891) (Harlan, J.); Ex parte Watkins, 3 Pet. 193, 202 (1830) (Marshall, C. J.). Gradually, we began to expand the category of claims deemed to be jurisdictional for habeas purposes. See, e. g., Ex parte Siebold, 100 U. S. 371, 377 (1880) (court without jurisdiction to impose sentence under unconstitutional statute); Ex parte Lange, 18 Wall. 163, 176 (1874) (court without jurisdiction to impose sentence not authorized by statute). Next, we began to recognize federal claims by state prisoners if no state court had provided a full and fair opportunity to litigate those claims. See, e. g., Moore v. Dempsey, 261 U. S. 86, 91-92 (1923); Frank v. Mangum, 237 U. S. 309, 335336 (1915). Before 1953, however, the inverse of this rule also remained true: Absent an alleged jurisdictional defect, "habeas corpus would not lie for a [state] prisoner ... if he had been given an adequate opportunity to obtain full and fair consideration of his federal claim in the state courts." Fay v. Noia, 372 U. S. 391, 459-460 (1963) (Harlan, J., dissenting). See generally Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 478-499 (1963). In other words, the state-court judgment was entitled to "absolute respect," Kuhlmann v. Wil-286Opinion of THOMAS, J.son, 477 U. S. 436, 446 (1986) (opinion of Powell, J.) (emphasis added), and a federal habeas court could not review it even for reasonableness.33 JUSTICE O'CONNOR offers three criticisms of our summary of the history of habeas corpus before 1953, none of which we find convincing. First, she contends that the full-and-fair litigation standard in Frank v. Mangum, 237 U. S. 309 (1915), and Moore v. Dempsey, 261 U. S. 86 (1923), served no purpose other than to define the scope of the underlying alleged constitutional violation. See post, at 297-299. Frank and Moore involved claims, rejected by the state appellate courts, that a trial had been so dominated by a mob as to violate due process. In Frank, we denied relief not because the state appellate court had decided the federal claim correctly (the relevant question on direct review), and not even because the state appellate court had decided the federal claim reasonably, but only "because Frank's federal claims had been considered by a competent and unbiased state tribunal," Stone v. Powell, 428 U. S. 465, 476 (1976). In Moore, which reaffirmed Frank expressly, see 261 U. S., at 90-91, we ordered the District Court to consider the mob domination claim on the merits because the state appellate court's "perfunctory treatment" of it "was not in fact acceptable corrective process." Noia, 372 U. S., at 458 (Harlan, J., dissenting); see also Bator, 76 Harv. L. Rev., at 488-489. In both cases, a claim that the habeas petitioner had been denied due process at trial was not cognizable on habeas unless the petitioner also had been denied a full and fair opportunity to raise that claim on appeal.Second, JUSTICE O'CONNOR states that we mischaracterize the views of Justice Powell about the history of habeas law between 1915 and 1953. See post, at 299. In fact, however, Justice Powell has often recounted exactly the same familiar history that we summarize above. In Rose v. Mitchell, 443 U. S. 545 (1979), for example, he described Frank as having "modestly expanded" the "scope of the writ" in order to "encompass those cases where the defendant's federal constitutional claims had not been considered in the state-court proceeding." 443 U. S., at 580 (opinion concurring in judgment). Similarly, in Schneckloth v. Bustamonte, 412 U. S. 218 (1973), he described Frank as having extended "[t]he scope of federal habeas corpus" to permit consideration of "whether the applicant had been given an adequate opportunity in state court to raise his constitutional claims." 412 U. S., at 255-256 (concurring opinion). In neither case, nor in Kuhlmann, did Justice Powell even suggest that federal habeas was available before 1953 to a prisoner who had received a full and fair opportunity to litigate his federal claim in state court.Third, JUSTICE O'CONNOR criticizes our failure to acknowledge Salinger287We rejected the principle of absolute deference in our landmark decision in Brown v. Allen, 344 U. S. 443 (1953). There, we held that a state-court judgment of conviction "is not res judicata" on federal habeas with respect to federal constitutional claims, id., at 458, even if the state court has rejected all such claims after a full and fair hearing. Instead, we held, a district court must determine whether the state-court adjudication "has resulted in a satisfactory conclusion." Id., at 463. We had no occasion to explore in detail the question whether a "satisfactory" conclusion was one that the habeas court considered correct, as opposed to merely reasonable, because we concluded that the constitutional claims advanced in Brown itself would fail even if the state courts' rejection of them were reconsidered de novo. See id., at 465-476. Nonetheless, we indicated that the federal courts enjoy at least the discretion to take into consideration the fact that a state court has previously rejected the federal claims asserted on habeas. See id., at 465 ("As the state and federal courts have the same responsibilities to protect persons from violation of their constitutional rights, we conclude that a federal district court may decline, without a rehearing of the facts, to award a writ of habeas corpus to a state prisoner where the legality of such detention has beenplicitly to hold that "res judicata is not strictly followed on federal habeas." Post, at 299. Salinger, however, involved the degree of preclusive effect of a habeas judgment upon subsequent habeas petitions filed by a federal prisoner. This case, of course, involves the degree of preclusive effect of a criminal conviction upon an initial habeas petition filed by a state prisoner. We cannot fault ourselves for limiting our focus to the latter context. But even assuming its relevance, Salinger hardly advances the position advocated by JUSTICE O'CONNOR that a habeas court must exercise de novo review with respect to mixed questions of law and fact. Despite acknowledging that a prior habeas judgment is not entitled to absolute preclusive effect under the doctrine of res judicata, Salinger also indicated that the prior habeas judgment "may be considered, and even given controlling weight." 265 U. S., at 231 (emphasis added).288Opinion of THOMAS, J.determined, on the facts presented, by the highest state court with jurisdiction").4In an influential separate opinion endorsed by a majority of the Court, Justice Frankfurter also rejected the principle of absolute deference to fairly litigated state-court judgments. He emphasized that a state-court determination of federal constitutional law is not "binding" on federal habeas, id., at 506, regardless of whether the determination involves a pure question of law, ibid., or a "so-called mixed questio[n]" requiring the application of law to fact, id., at 507. Nonetheless, he stated quite explicitly that a "prior State determination may guide [the] discretion [of the district court] in deciding upon the appropriate course to be followed in disposing of the application." Id., at 500. Discussing mixed questions specifically, he noted further that "there is no need for the federal judge, if he could, to shut his eyes to the State consideration." Id., at 508.54JUSTICE O'CONNOR contends that the inclusion of this passage in a section of our opinion entitled "Right to a Plenary Hearing" makes clear that we were discussing only the resolution of factual questions. See post, at 300-301. In our introduction to that section, however, we indicated that both factual and legal questions were at issue. See 344 U. S., at 460 (noting contentions "that the District Court committed error when it took no evidence and heard no argument on the federal constitutional issues" (emphasis added)). Indeed, if only factual questions were at issue, we would have authorized a denial of the writ not whenever the statecourt proceeding "has resulted in a satisfactory conclusion" (as we did), id., at 463 (emphasis added), but only whenever the state-court proceeding has resulted in satisfactory factjinding.5 JUSTICE O'CONNOR quotes Justice Frankfurter for the proposition that a district judge on habeas" 'must exercise his own judgment' "with respect to mixed questions. Post, at 300 (quoting 344 U. S., at 507). Although we agree with JUSTICE O'CONNOR that this passage by itself suggests a de novo standard, it is not easily reconciled with Justice Frankfurter's later statement that "there is no need for the federal judge, if he could, to shut his eyes to the State consideration" of the mixed question, id., at 508. These statements can be reconciled, of course, on the assumption that the habeas judge must review the state-court determination for reasonableness. But we need not attempt to defend that conclusion in detail, for289In subsequent cases, we repeatedly reaffirmed Brown's teaching that mixed constitutional questions are "open to review on collateral attack," Cuyler v. Sullivan, 446 U. S. 335, 342 (1980), without ever explicitly considering whether that "review" should be de novo or deferential. In some of these cases, we would have denied habeas relief even under de novo review, see, e. g., Strickland v. Washington, 466 U. S. 668, 698 (1984) (facts make it "clear" that habeas petitioner did not receive ineffective assistance of counsel); Neil v. Biggers, 409 U. S. 188, 201 (1972) (facts disclose "no substantial likelihood" that habeas petitioner was subjected to unreliable pretrial lineup); in others, we would have awarded habeas relief even under deferential review, see, e. g., Brewer v. Williams, 430 U. S. 387, 405 (1977) (facts provide "no reasonable basis" for finding valid waiver of right to counsel); Irvin v. Dowd, 366 U. S. 717, 725 (1961) (facts show "clear and convincing" evidence of biased jury); and in yet others, we remanded for application of a proper legal rule without addressing that standard of review question, see, e. g., Cuyler, supra, at 342, 350. Nonetheless, because these cases never qualified our early citation of Brown for the proposition that a federal habeas court must reexamine mixed constitutional questions "independently," Townsend v. Sain, 372 U. S. 293, 318 (1963) (dictum), we have gradually come to treat as settled the rule that mixed constitutional questions are "subject to plenary federal review" on habeas, Miller v. Fenton, 474 U. S. 104, 112 (1985).6we conclude not that Brown v. Allen establishes deferential review for reasonableness, but only that Brown does not squarely foreclose it.6 We have no disagreement with JUSTICE O'CONNOR that Brown v. Allen quickly came to be cited for the proposition that a habeas court should review mixed questions "independently"; that several of our cases since Brown have applied a de novo standard with respect to pure and mixed legal questions; and that the de novo standard thus appeared well settled with respect to both categories by the time the Court decided Miller v. Fenton in 1985. See post, at 301-302. Despite her extended discussion of the leading cases from Brown through Miller, however, JUSTICE O'CON-290Opinion of THOMAS, J.Jackson itself contributed to this trend. There, we held that a conviction violates due process if supported only by evidence from which "no rational trier of fact could find guilt beyond a reasonable doubt." 443 U. S., at 317. We stated explicitly that a state-court judgment applying the Jackson rule in a particular case "is of course entitled to deference" on federal habeas. Id., at 323; see also id., at 336, n. 9 (STEVENS, J., concurring in judgment) ("State judges are more familiar with the elements of state offenses than are federal judges and should be better able to evaluate sufficiency claims"). Notwithstanding these principles, however, we then indicated that the habeas court itself should apply the Jackson rule, see id., at 324, rather than merely reviewing the state courts' application of it for reasonableness. Ultimately, though, we had no occasion to resolve our conflicting statements on the standard of review question, because we concluded that the habeas petitioner was not entitled to relief even under our own de novo application of Jackson. See id., at 324-326.7NOR offers nothing to refute those of our limited observations with which she evidently disagrees-that an unadorned citation to Brown should not have been enough, at least as an original matter, to establish de novo review with respect to mixed questions; and that in none of our leading cases was the choice between a de novo and a deferential standard outcome determinative.7 JUSTICE O'CONNOR asserts that Jackson "expressly rejected" a "deferential standard of review" that she characterizes as "very much like the one" urged on us by petitioners. Post, at 303 (citing 443 U. S., at 323). What Jackson expressly rejected, however, was a proposal that habeas review "should be foreclosed" if the state courts provide "appellate review of the sufficiency of the evidence." Ibid. That rule, of course, would permit no habeas review of a state-court sufficiency determination. As we understand it, however, petitioners' proposal would permit limited review for reasonableness, a standard surely consistent with our own statement that that state-court determination "is of course entitled to deference." Ibid. We agree with JUSTICE O'CONNOR that Jackson itself applied a de novo standard. See post, at 303. Nonetheless, given our statement291Despite our apparent adherence to a standard of de novo habeas review with respect to mixed constitutional questions, we have implicitly questioned that standard, at least with respect to pure legal questions, in our recent retroactivity precedents. In Penry v. Lynaugh, 492 U. S. 302, 313-314 (1989), a majority of this Court endorsed the retroactivity analysis advanced by JUSTICE O'CONNOR for a plurality in Teague v. Lane, 489 U. S. 288 (1989). Under Teague, a habeas petitioner generally cannot benefit from a new rule of criminal procedure announced after his conviction has become final on direct appeal. See id., at 305-310 (opinion of O'CONNOR, J.). Teague defined a "new" rule as one that was "not dictated by precedent existing at the time the defendant's conviction became final." Id., at 301 (emphasis in original). In Butler v. McKellar, 494 U. S. 407, 415 (1990), we explained that the definition includes all rules "susceptible to debate among reasonable minds." Thus, if a state court has reasonably rejected the legal claim asserted by a habeas petitioner under existing law, then the claim seeks the benefit of a "new" rule under Butler, and is therefore not cognizable on habeas under Teague. In other words, a federal habeas court "must defer to the state court's decision rejecting the claim unless that decision is patently unreasonable." Butler, supra, at 422 (Brennan, J., dissenting).8expressly endorsing a notion of at least limited deference, and given that the Jackson petitioner would have lost under either a de novo standard or a reasonableness standard, we cannot agree that the case "expressly rejected" the latter. Post, at 303.8JUSTICE O'CONNOR suggests that Teague and its progeny "did not establish a standard of review at all." Post, at 303-304. Instead, she contends, these cases merely prohibit the retroactive application of new rules on habeas, ibid., and establish the criterion for distinguishing new rules from old ones, ibid. We have no difficulty with describing Teague as a case about retroactivity, rather than standards of review, although we do not dispute JUSTICE O'CONNOR'S suggestion that the difference, at least in practice, might well be "only 'a matter of phrasing.''' Post, at 304 (cita-292Opinion of THOMAS, J.Teague was premised on the view that retroactivity questions in habeas corpus proceedings must take account of the nature and function of the writ, which we described as "'a collateral remedy ... not designed as a substitute for direct review.'" 489 U. S., at 306 (opinion of O'CONNOR, J.) (quoting Mackey v. United States, 401 U. S. 667, 682-683 (1971) (Harlan, J., concurring in judgments in part and dissenting in part)) (emphasis in Mackey). JUSTICE STEVENS reasoned similarly in Jackson, where he stressed that habeas corpus "is not intended as a substitute for appeal, nor as a device for reviewing the merits of guilt determinations at criminal trials," but only "to guard against extreme malfunctions in the state criminal justice systems." 443 U. S., at 332, n. 5 (opinion concurring in judgment); see also Greer v. Miller, 483 U. S. 756, 768-769 (1987) (STEVENS, J., concurring in judgment). Indeed, the notion that different standards should apply on direct and collateral review runs throughout our recent habeas jurisprudence. We have said, for example, that new rules always have retroactive application totion omitted). We do disagree, however, with JUSTICE O'CONNOR'S definition of what constitutes a "new rule" for Teague purposes. A rule is new, she contends, if it "can be meaningfully distinguished from that established by binding precedent at the time [the] state court conviction became final." Post, at 304. This definition leads her to suggest that a habeas court must determine whether the state courts have interpreted old precedents "properly." Post, at 305. Our precedents, however, require a different standard. We have held that a rule is "new" for Teague purposes whenever its validity under existing precedents is subject to debate among "reasonable minds," Butler, 494 U. S., at 415, or among "reasonable jurists," Sawyer v. Smith, 497 U. S. 227, 234 (1990). Indeed, each of our last four relevant precedents has indicated that Teague insulates on habeas review the state courts' '''reasonable, good-faith interpretations of existing precedents.''' Ibid. (quoting Butler, supra, at 414); Saffle v. Parks, 494 U. S. 484, 488 (1990) (citing Butler); see Stringer v. Black, 503 U. S. 222, 237 (1992) ("The purpose of the new rule doctrine is to validate reasonable interpretations of existing precedents"). Thus, Teague bars habeas relief whenever the state courts have interpreted old precedents reasonably, not only when they have done so "properly." Post, at 305.293criminal cases pending on direct review, see Griffith v. Kentucky, 479 U. S. 314, 320-328 (1987), but that they generally do not have retroactive application to criminal cases pending on habeas, see Teague, supra, at 305-310 (opinion of O'CONNOR, J.). We have held that the Constitution guarantees the right to counsel on a first direct appeal, see, e. g., Douglas v. California, 372 U. S. 353, 355-358 (1963), but that it guarantees no right to counsel on habeas, see, e. g., Pennsylvania v. Finley, 481 U. S. 551, 555 (1987). On direct review, we have announced and enforced the rule that state courts must exclude evidence obtained in violation of the Fourth Amendment. See, e. g., Mapp v. Ohio, 367 U. S. 643, 654-660 (1961). We have also held, however, that claims under Mapp are not cognizable on habeas as long as the state courts have provided a full and fair opportunity to litigate them at trial or on direct review. See Stone v. Powell, 428 U. S. 465, 489496 (1976).These differences simply reflect the fact that habeas review "entails significant costs." Engle v. Isaac, 456 U. S. 107, 126 (1982). Among other things, "'[i]t disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.'" Duckworth v. Eagan, 492 U. S. 195, 210 (1989) (O'CONNOR, J., concurring) (quoting Harris v. Reed, 489 U. S. 255, 282 (1989) (KENNEDY, J., dissenting)). In various contexts, we have emphasized that these costs, as well as the countervailing benefits, must be taken into consideration in defining the scope of the writ. See, e. g., Coleman v. Thompson, 501 U. S. 722, 738-739 (1991) (procedural default); McCleskey v. Zant, 499 U. S. 467, 490-493 (1991) (abuse of the writ); Teague, supra, at 308-310 (opinion of O'CONNOR, J.) (retroactivity); Kuhlmann v. Wilson, 477 U. S., at 444-455 (opinion of Powell, J.) (successive petitions); Stone v. Powell, supra, at 491-492, n. 31 (cognizability of particular claims).294Opinion of THOMAS, J.In light of these principles, petitioners ask that we reconsider our statement in Miller v. Fenton that mixed constitutional questions are "subject to plenary federal review" on habeas, 474 U. S., at 112. By its terms, Teague itself is not directly controlling, because West sought federal habeas relief under Jackson, which was decided a year before his conviction became final on direct review. Nonetheless, petitioners contend, the logic of Teague makes our statement in Miller untenable. Petitioners argue that if deferential review for reasonableness strikes an appropriate balance with respect to purely legal claims, then it must strike an appropriate balance with respect to mixed questions as well. Moreover, they note that under the habeas statute itself, a state-court determination of a purely factual question must be "presumed correct," and can be overcome only by "convincing evidence," unless one of eight statutorily enumerated exceptions is present. 28 U. S. C. § 2254(d). It makes no sense, petitioners assert, for a habeas court generally to review factual determinations and legal determinations deferentially, but to review applications of law to fact de novo. Finally, petitioners find the prospect of deferential review for mixed questions at least implicit in our recent statement that Teague concerns are fully implicated "by the application of an old rule in a manner that was not dictated by precedent." Stringer v. Black, 503 U. S. 222, 228 (1992) (emphasis added). For these reasons, petitioners invite us to reaffirm that a habeas judge need not-and indeed may not-"shut his eyes" entirely to state-court applications of law to fact. Brown v. Allen, 344 U. S., at 508 (opinion of Frankfurter, J.). West develops two principal counterarguments: first, that Congress implicitly codified a de novo standard with respect to mixed constitutional questions when it amended the habeas statute in 1966; and second, that295de novo federal review is necessary to vindicate federal constitutional rights.9We need not decide such far-reaching issues in this case.As in both Brown and Jackson, the claim advanced by the habeas petitioner must fail even assuming that the state court's rejection of it should be reconsidered de novo. Whatever the appropriate standard of review, we conclude that there was more than enough evidence to support West's conviction.The case against West was strong. Two to four weeks after the Card ova home had been burglarized, over 15 of the items stolen were recovered from West's home. On direct examination at trial, West said nothing more than that he frequently bought and sold items at different flea markets. He failed to offer specific information about how he had come to acquire any of the stolen items, and he did not even mention Ronnie Elkins by name. When pressed on crossexamination about the details of his purchases, West contradicted himself repeatedly about where he supposedly had bought the stolen goods, and he gave vague, seemingly eva-9 JUSTICE O'CONNOR criticizes our failure to highlight in text the fact that Congress has considered, but failed to enact, several bills introduced during the last 25 years to prohibit de novo review explicitly. See post, at 305; see also Brief for Senator Biden et al. as Amici Curiae 10-16 (discussing various proposals). Our task, however, is not to construe bills that Congress has failed to enact, but to construe statutes that Congress has enacted. The habeas corpus statute was last amended in 1966. See 80 Stat. 1104-1105. We have grave doubts that post-1966 legislative history is of any value in construing its provisions, for we have often observed that" 'the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.''' Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 117 (1980), quoting United States v. Price, 361 U. S. 304, 313 (1960). Compare also Sullivan v. Finkelstein, 496 U. S. 617, 628, n. 8 (1990) (acknowledging "all the usual difficulties inherent in relying on subsequent legislative history"), with id., at 632 (SCALIA, J., concurring in part) ("Arguments based on subsequent legislative history, like arguments based on antecedent futurity, should not be taken seriously").296Opinion of THOMAS, J.sive answers to various other questions. See n. 1, supra. He said further that he could not remember how he had acquired such major household items as a television set and a coffee table, and he failed to offer any explanation whatsoever about how he had acquired Cardova's record player, among other things. Moreover, he testified that he had acquired Card ova's second television set from a seller other than Elkins (who remained unidentified) in an entirely unrelated (but roughly contemporaneous) transaction. Finally, he failed to produce any other supporting evidence, such as testimony from Elkins, whom he claimed to have known for years and done business with on a regular basis.As the trier of fact, the jury was entitled to disbelieve West's uncorroborated and confused testimony. In evaluating that testimony, moreover, the jury was entitled to discount West's credibility on account of his prior felony conviction, see Va. Code Ann. § 19.2-269 (1990); Sadoski v. Commonwealth, 219 Va. 1069, 254 S. E. 2d 100 (1979), and to take into account West's demeanor when testifying, which neither the Court of Appeals nor we may review. And if the jury did disbelieve West, it was further entitled to consider whatever it concluded to be perjured testimony as affirmative evidence of guilt, see, e. g., Wilson v. United States, 162 U. S. 613, 620-621 (1896); United States v. Zafiro, 945 F.2d 881, 888 (CA7 1991) (Posner, J.), cert. granted on other grounds, 503 U. S. 935 (1992); Dyer v. MacDougall, 201 F.2d 265, 269 (CA2 1952) (L. Hand, J.).In Jackson, we emphasized repeatedly the deference owed to the trier of fact and, correspondingly, the sharply limited nature of constitutional sufficiency review. We said that "all of the evidence is to be considered in the light most favorable to the prosecution," 443 U. S., at 319 (emphasis in original); that the prosecution need not affirmatively "rule out every hypothesis except that of guilt," id., at 326; and that a reviewing court "faced with a record of historical facts that supports conflicting inferences must presume-even if297it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution," ibid. Under these standards, we think it clear that the trial record contained sufficient evidence to support West's conviction.Having granted relief on West's Jackson claim, the Court of Appeals declined to address West's additional claim that he was entitled to a new trial, as a matter of due process, on the basis of newly discovered evidence. See 931 F. 2d, at 271, n. 9. As that claim is not properly before us, we decline to address it here. 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, 1991SyllabusWRIGHT, WARDEN, ET AL. v. WESTCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 91-542. Argued March 24, 1992-Decided June 19, 1992A few weeks after a Virginia home was burglarized, over 15 of the missing items were recovered from respondent West's home. At his trial on grand larceny charges, he admitted to a prior felony conviction, but denied having stolen the items, explaining that he frequently bought and sold merchandise at different flea markets. He offered no explanation for how he had acquired any of the stolen items until cross-examination, when he gave vague, evasive, and even contradictory answers; could not remember how he acquired several major items, including a television set and a coffee table; and failed to produce any evidence corroborating his story. West was convicted. The State Supreme Court affirmed the conviction and denied his petition for a writ of habeas corpus, both times rejecting, inter alia, West's contention that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. On federal habeas, the District Court also rejected that contention. The Court of Appeals reversed on the ground that the standard of Jackson v. Virginia, 443 U. S. 307, 319-that evidence is sufficient to support a conviction as a matter of due process if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" -had not been met.Held: The judgment is reversed, and the case is remanded. 931 F.2d 262, reversed and remanded.JUSTICE THOMAS, joined by THE CHIEF JUSTICE and JUSTICE SCALIA, concluded that regardless of whether a federal habeas court should review state-court applications of law to fact deferentially or de novo, the trial record contains more than enough evidence to support West's conviction. Jackson repeatedly emphasizes the deference owed the trier of fact and the sharply limited nature of constitutional sufficiency review. The case against West was strong. The jury was entitled to disbelieve his uncorroborated and confused testimony, discount his credibility on account of his prior felony conviction, and take his demeanor into account. The jury was also permitted to consider what it concluded to be perjured testimony as affirmative evidence of guilt. Pp. 295-297.278SyllabusJUSTICE WHITE concluded that there was enough evidence to support West's conviction under the Jackson standard. P. 297.JUSTICE O'CONNOR, joined by JUSTICE BLACKMUN and JUSTICE STEVENS, concluded that the evidence supported West's conviction and that there was no need to decide the standard of review issue to decide this case. Pp. 297, 305-306.JUSTICE KENNEDY concluded that the evidence was sufficient to convince a rational factfinder of guilt beyond a reasonable doubt and that Teague v. Lane, 489 U. S. 288, should not be interpreted as calling into question the settled principle that mixed questions are subject to de novo review on federal habeas corpus. Pp. 306-310.JUSTICE SOUTER concluded that West sought the benefit of a "new rule," and thus his claim was barred by Teague v. Lane, 489 U. S. 288. The Court of Appeals misapplied Teague's commands, since, while the Jackson rule was "old" enough to have predated the finality of West's conviction, it was not specific enough to dictate the rule on which the conviction was held unlawful. Although the State Supreme Court was not entitled to disregard Jackson, it does not follow from Jackson's rule that the insufficiency of the evidence to support West's conviction was apparent. Virginia has long recognized a rule that evidence of falsely explained possession of recently stolen property is sufficient to sustain a finding that the possessor took the goods, and the jury's rejection of West's explanation implies a finding that his explanation was false. Virginia's rule is reasonable and has been accepted as good law against the backdrop of a general state sufficiency standard no less stringent than the Jackson rule. Thus, it is not possible to say that reasonable jurists could not have considered Virginia's rule compatible with the Jackson standard. Pp. 310-316.THOMAS, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and SCALIA, J., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 297. O'CONNOR, J., filed an opinion concurring in the judgment, in which BLACKMUN and STEVENS, JJ., joined, post, p. 297. KENNEDY, J., post, p. 306, and SOUTER, J., post, p. 310, filed opinions concurring in the judgment.Donald R. Curry, Senior Assistant Attorney General of Virginia, argued the cause for petitioners. With him on the briefs were Mary Sue Terry, Attorney General, H. Lane Kneedler, Chief Deputy Attorney General, Stephen D. Rosenthal, Deputy Attorney General, and Jerry P. Slonaker, Senior Assistant Attorney General.279Full Text of Opinion

1974_74-175

MR. JUSTICE REHNQUIST delivered the opinion of the Court.In February, 1973, plaintiffs [Footnote 1] -- then enlisted members of the United States Marine Corps -- brought this class action in the United States District Court for the Central District of California challenging the authority of the military to try them at summary courts-martial without providing them with counsel. Five plaintiffs [Footnote 2] had been charged with "unauthorized absences" [Footnote 3] in violation of Art. 86, UCMJ, 10 U.S.C. § 886, convicted at summary courts-martial, and sentenced, inter alia, to periods of confinement ranging from 20 to 30 days at hard labor. The other three plaintiffs, two of whom were charged, inter alia, with unauthorized absence and one with assault, Art. 128, UCMJ, 10 U.S.C. § 928, had been ordered to stand trial at summary courts-martial which had not been convened. Those who were convicted had not been provided counsel -- those who were awaiting trial had been informed that counsel would not be provided. All convicted plaintiffs were informed prior to trial that they would not be afforded counsel and that they could refuse trial by summary court-martial if they so desired. In the event of such refusal, their cases would be referred to special courts-martial at which counsel would be provided. All plaintiffs consented in writing to proceed to trial by summary court-martial, without Page 425 U. S. 29 counsel. [Footnote 4] Plaintiffs' court-martial records were reviewed and approved [Footnote 5] by the Staff Judge Advocate pursuant to Art. 65(c), UCMJ, 10 U.S.C. § 865(c). Plaintiffs did not file a petition for review with the Judge Advocate General of the Navy pursuant to Art. 69, UCMJ, 10 U.S.C. § 869. [Footnote 6]In the District Court, plaintiffs brought a class action seeking habeas corpus (release from confinement), an Page 425 U. S. 30 injunction against future confinement resulting from uncounseled summary court-martial convictions, and an order vacating the convictions of those previously convicted.The District Court allowed the suit to proceed as a class action, expunged all of plaintiffs' convictions, released all plaintiffs and all other members of their class [Footnote 7] from confinement, and issued a worldwide injunction against summary courts-martial without counsel. Because of our disposition of this case on the merits, we have no occasion to reach the question of whether Fed.Rule Civ.Proc. 23, providing for class actions, is applicable to petitions for habeas corpus, see Harris v. Nelson, 394 U. S. 286 (1969), or whether the District Court properly determined that its remedial order was entitled to be enforced outside of the territorial limits of the district in which the court sat.The Court of Appeals vacated the judgment of the District Court, and remanded the case for reconsideration in light of the Court of Appeals' opinion in Daigle v. Warner, 490 F.2d 358 (CA9 1973). Daigle had held that there was no Sixth Amendment right to counsel in summary courts-martial, and likewise held that there was no absolute Fifth Amendment due process right to counsel in every case in which a military defendant might be imprisoned. However, citing Gagnon v. Scarpelli, 411 U. S. 778 (1973), it did hold that counsel was required where the"accused makes a request based on a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to Page 425 U. S. 31 present the defense or mitigating circumstances."Daigle made an exception from this general rule for cases in which counsel "is not reasonably available," in which instance it would not be required. 490 F.2d at 365. We granted certiorari. 419 U.S. 895 (1974).IThe UCMJ provides four methods for disposing of cases involving offenses committed by servicemen: the general, special, and summary courts-martial, and disciplinary punishment administered by the commanding officer pursuant to Art 15, UCMJ, 10 U.S.C. § 815. General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both the prosecution and the defense. [Footnote 8] General courts-martial are authorized to award any lawful sentence, including death. Art. 18, UCMJ, 10 U.S.C. § 818. Special courts-martial may award a bad-conduct discharge, up to six months' confinement at hard labor, forfeiture of two-thirds pay per month for six months, and, in the case of an enlisted member, reduction to the lowest pay grade, Art.19, UCMJ, 10 U.S.C. § 819. Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative Page 425 U. S. 32 method of dealing with the most minor offenses. Parker v. Levy, 417 U. S. 733, 417 U. S. 750 (1974). [Footnote 9]The summary court-martial occupies a position between informal nonjudicial disposition under Art. 15 and the courtroom-type procedure of the general and special courts-martial. Its purpose, "is to exercise justice promptly for relatively minor offenses under a simple form of procedure." Manual for Courts-Martial 79a (1969) (MCM). It is an informal proceeding conducted by a single commissioned officer with jurisdiction only over noncommissioned officers and other enlisted personnel. Art. 20, UCMJ, 10 U.S.C. § 820. The presiding officer acts as judge, factfinder, prosecutor, and defense counsel. The presiding officer must inform the accused of the charges and the name of the accuser and call all witnesses whom he or the accused desires to call. [Footnote 10] MCM § 79d(1). The accused must consent to trial Page 425 U. S. 33 by summary court-martial; if he does not do so, trial may be ordered by special or general court-martial.The maximum sentence elements which may be imposed by summary courts-martial are: one month's confinement at hard labor; 45 days' hard labor without confinement; two months' restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month. Art. 20, UCMJ, 10 U.S.C. § 820. [Footnote 11]IIThe question of whether an accused in a court-martial has a constitutional right to counsel has been much debated, [Footnote 12] and never squarely resolved. See Reid v. Covert, 354 U. S. 1, 354 U. S. 37 (1957). Dicta in Ex parte Milligan, 4 Wall. 2, 71 U. S. 123 (1866), said that"the framers of the Constitution, doubtless, meant to limit the right of trial by Page 425 U. S. 34 jury, in the sixth amendment to those persons who were subject to indictment or presentment in the fifth."In Ex parte Quirin, 317 U. S. 1, 317 U. S. 40 (1942), it was said that"'cases arising in the land or naval forces' . . . are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth."We find it unnecessary in this case to finally resolve the broader aspects of this question, since we conclude that, even were the Sixth Amendment to be held applicable to court-martial proceedings, the summary court-martial provided for in these cases was not a "criminal prosecution" within the meaning of that Amendment. [Footnote 13]This conclusion, of course, does not answer the ultimate question of whether the plaintiffs are entitled to counsel at a summary court-martial proceeding, but it does shift the frame of reference from the Sixth Amendment's guarantee of counsel "[i]n all criminal prosecutions" to the Fifth Amendment's prohibition against the deprivation of "life, liberty, or property, without due process of law."Argersinger v. Hamlin, 407 U. S. 25 (172), held that the Sixth Amendment's provision for the assistance of counsel extended to misdemeanor prosecutions in civilian courts if conviction would result in imprisonment. A Page 425 U. S. 35 summary court-martial may impose 30 days' confinement at hard labor, which is doubtless the military equivalent of imprisonment. Yet the fact that the outcome of a proceeding may result in loss of liberty does not, by itself, even in civilian, life mean that the Sixth Amendment's guarantee of counsel is applicable. In Gagnon v. Scarpelli, 411 U. S. 778 (1973), the respondent faced the prospect of being sent to prison as a result of the revocation of his probation, but we held that the revocation proceeding was nonetheless not a "criminal proceeding." We took pains in that case to observe:"[T]here are critical differences between criminal trials and probation or parole revocation hearings, and both society and the probationer or parolee have stakes in preserving these differences.""In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented not by a prosecutor, but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole."Id. at 411 U. S. 788-789.In re Gault, 387 U. S. 1 (1967), involved a proceeding in which a juvenile was threatened with confinement. The Court, although holding counsel was required, went on to say:"'We do not mean . . to indicate that the hearing Page 425 U. S. 36 to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.'"Id. at 387 U. S. 30.The Court's distinction between various civilian proceedings, and its conclusion that, notwithstanding the potential loss of liberty, neither juvenile hearings nor probation revocation hearings are "criminal proceedings," are equally relevant in assessing the role of the summary court-martial in the military.The summary court-martial is, as noted above, one of four types of proceedings by which the military imposes discipline or punishment. If we were to remove the holding of Argersinger from its civilian context and apply it to require counsel before a summary court-martial proceeding simply because loss of liberty may result from such a proceeding, it would seem all but inescapable that counsel would likewise be required for the lowest level of military proceeding for dealing with the most minor offenses. For even the so-called Art. 15 "nonjudicial punishment," which may be imposed administratively by the commanding officer, may result in the imposition upon an enlisted man of "correctional custody" with hard labor for not more than 30 consecutive days. [Footnote 14] 10 U.S.C. § 815(b). [Footnote 15] But we think that Page 425 U. S. 37 the analysis made in cases such as Gagnon and Gault, as well as considerations peculiar to the military, counsel against such a mechanical application of Argersinger.Admittedly Gagnon is distinguishable, in that there, the defendant had been earlier sentenced at the close of an orthodox criminal prosecution. But Gault is not so distinguishable: there, the juvenile faced possible initial confinement as a result of the proceeding in question, but the Court nevertheless based its conclusion that counsel was required on the Due Process Clause of the Fourteenth Amendment, rather than on any determination that the hearing was a "criminal prosecution" within the meaning of the Sixth Amendment.It seems to us indisputably clear, therefore, that, even in a civilian context, the fact that a proceeding will result in loss of liberty does not ipso facto mean that the proceeding is a "criminal prosecution" for purposes of the Sixth Amendment. Nor does the fact that confinement will be imposed in the first instance as a result of that proceeding make it a "criminal prosecution." When we consider in addition the fact that a summary court-martial occurs in the military community, rather than the civilian community, we believe that the considerations supporting the conclusion that it is not a "criminal prosecution" are at least as strong as those which were held dispositive in Gagnon and Gault.The dissent points out, post at 425 U. S. 56-57, n. 6, that, in Page 425 U. S. 38 Gault, the Court gave weight to the rehabilitative purpose of the juvenile proceedings there involved, and that no such factor is present in summary courts-martial. Undoubtedly both Gault and Gagnon are factually distinguishable from the summary court-martial proceeding here. But together they surely stand for the proposition that, even in the civilian community, a proceeding which may result in deprivation of liberty is nonetheless not a "criminal proceeding" within the meaning of the Sixth Amendment if there are elements about it which sufficiently distinguish it from a traditional civilian criminal trial. The summary court-martial proceeding here is likewise different from a traditional trial in many respects, the most important of which is that it occurs within the military community. This latter factor, under a long line of decisions of this Court, is every bit as significant, and every bit as entitled to be given controlling weight, as the fact in Gagnon that the defendant had been previously sentenced, or the fact in Gault that the proceeding had a rehabilitative purpose.We have only recently noted the difference between the diverse civilian community and the much more tightly regimented military community in Parker v. Levy, 417 U. S. 733, 417 U. S. 749 (1974). We said there that the UCMJ "cannot be equated to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community." Ibid. Much of the conduct proscribed by the military is not "criminal" conduct in the civilian sense of the word. Id. at 417 U. S. 749-751. Page 425 U. S. 39Here, for example, most of the plaintiffs were charged solely with "unauthorized absence," an offense which has no common law counterpart and which carries little popular opprobrium. Conviction of such an offense would likely have no consequences for the accused beyond the immediate punishment meted out by the military, unlike conviction for such civilian misdemeanors as vagrancy or larceny which could carry a stamp of "bad character" with conviction. [Footnote 16] Page 425 U. S. 40By the same token, the penalties which may be meted out in summary courts-martial are limited to one month's confinement at hard labor, 45 days' hard labor without confinement, or two months' restriction to specified limits. [Footnote 17] Sanctions which may be imposed affecting a property interest are limited to reduction in grade with attendant loss of pay, or forfeiture or detention of a portion of one month's pay.Finally, a summary court-martial is procedurally quite different from a criminal trial. In the first place, it is not an adversary proceeding. Yet the adversary nature of civilian criminal proceedings is one of the touchstones of the Sixth Amendment's right to counsel [Footnote 18] which we Page 425 U. S. 41 extended to petty offenses in Argersinger v. Hamlin, 407 U. S. 25 (1972).Argersinger relied on Gideon v. Wainwright, 372 U. S. 335 (1963), where we held:"[I]n our adversary system of criminal justice, any person haled into court . . . cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. . . ."Id. at 372 U. S. 344.The function of the presiding officer is quite different from that of any participant in a civilian trial. He is guided by the admonition in 79a of the MCM:"The function of a summary court-martial is to exercise justice promptly for relatively minor offenses under a simple form of procedure. The summary court will thoroughly and impartially inquire into both sides of the matter, and will assure that the interests of both the Government and the accused are safeguarded."The presiding officer is more specifically enjoined to attend to the interests of the accused by these provisions of the same paragraph:"The accused will be extended the right to cross-examine these witnesses. The summary court will aid the accused in the cross-examination, and, if the accused desires, will ask questions suggested by the accused. On behalf of the accused, the court will obtain the attendance of witnesses, administer the oath and examine them, and obtain such other evidence Page 425 U. S. 42 as may tend to disprove or negative guilt of the charges, explain the acts or omissions charged, show extenuating circumstances, or establish grounds for mitigation. Before determining the findings, he will explain to the accused his right to testify on the merits or to remain silent and will give the accused full opportunity to exercise his election."MCM � 79d(3).We believe there are significant parallels between the Court's description of probation and parole revocation proceedings in Gagnon and the summary court-martial, which parallels tend to distinguish both of these proceedings from the civilian misdemeanor prosecution upon which Argersinger focused. When we consider in addition that the court-martial proceeding takes place not in civilian society, as does the parole revocation proceeding, but in the military community with all of its distinctive qualities, we conclude that a summary court-martial is not a "criminal prosecution" for purposes of the Sixth Amendment. [Footnote 19]IIIThe Court of Appeals likewise concluded that there was no Sixth Amendment right to counsel in summary court-martial proceedings such as this, but applying the due process standards of the Fifth Amendment adopted a standard from Gagnon v. Scarpelli, 411 U. S. 778 (1973), which would have made the right to counsel depend upon the nature of the serviceman's defense. We Page 425 U. S. 43 are unable to agree that the Court of Appeals properly applied Gagnon in this military context.We recognize that plaintiffs, who have either been convicted or are due to appear before a summary court-martial, may be subjected to loss of liberty or property, and consequently are entitled to the due process of law guaranteed by the Fifth Amendment.However, whether this process embodies a right to counsel depends upon an analysis of the interests of the individual and those of the regime to which he is subject. Wolff v. McDonnell, 418 U. S. 539, 418 U. S. 556 (1974).In making such an analysis, we must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S.Const., Art. I, § 8, that counsel should not be provided in summary courts-martial. As we held in Burns v. Wilson, 346 U. S. 137, 346 U. S. 140 (1953):"[T]he rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers especially entrusted that task to Congress."(Footnote omitted.)The United States Court of Military Appeals has held that Argersinger is applicable to the military and requires counsel at summary courts-martial. United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973). Dealing with areas of law peculiar to the military branches, the Court of Military Appeals' judgments are normally entitled to great deference. But the 2-to-1 decision, in which the majority itself was sharply divided in theory, does not reject the claim of military necessity. Judge Quinn was of the opinion that Argersinger's expansion of the Sixth Amendment right to counsel was Page 425 U. S. 44 binding on military tribunals equally with civilian courts. [Footnote 20] Alderman, supra at 300, 46 C.M.R. at 300. Judge Duncan, concurring in part, disagreed, reasoning that decisions such as Argersinger were not binding precedent if "there is demonstrated a military necessity demanding nonapplicability." Id. at 303, 46 C.M.R. at 303. He found no convincing evidence of military necessity which would preclude application of Argersinger. Chief Judge Darden, dissenting, disagreed with Judge Quinn, and pointed to that court's decisions recognizing "the need for balancing the application of the constitutional protection against military needs." Id. at 307, 46 C.M.R. at 307. Taking issue as well with Judge Duncan, he stated his belief that the Court of Military Appeals "possesses no special competence to evaluate the effect of a particular procedure on morale and discipline and to require its implementation over and above the balance struck by Congress." Id. at 308, 46 C.M.R. at 308.Given that only one member of the Court of Military Appeals took issue with the claim of military necessity, and taking the latter of Chief Judge Darden's statements as applying with at least equal force to the Members of this Court, we are left with Congress' previous determination that counsel is not required. We thus need only decide whether the factors militating in favor of counsel at summary courts-martial are so extraordinarily weighty as to overcome the balance struck by Congress. [Footnote 21] Page 425 U. S. 45We first consider the effect of providing counsel at summary courts-martial. As we observed in Gagnon v. Scarpelli, supra at 411 U. S. 787:"The introduction of counsel into a . . . proceeding will alter significantly the nature of the proceeding. If counsel is provided for the [accused], the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients' positions and to contest with vigor all adverse evidence and views."In short, presence of counsel will turn a brief, informal hearing which may be quickly convened and rapidly concluded into an attenuated proceeding which consumes the resources of the military to a degree which Congress could properly have felt to be beyond what is warranted by the relative insignificance of the offenses being tried. Such a lengthy proceeding is a particular burden to the Armed Forces because virtually all the participants, including the defendant and his counsel, are members of Page 425 U. S. 46 the military whose time may be better spent than in possibly protracted disputes over the imposition of discipline. [Footnote 22]As we observed in United States ex rel. Toth v. Quarles, 350 U. S. 11, 350 U. S. 17 (1955):"[I]t is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. . . . [M]ilitary tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts."However, the Court of Appeals did not find counsel necessary in all proceedings but only, pursuant to Daigle v Warner, where the accused makes"a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present the defense or mitigating circumstances."490 F.2d at 365.But if the accused has such a claim, if he feels that, in order to properly air his views and vindicate his rights, Page 425 U. S. 47 a formal, counseled proceeding is necessary he may simply refuse trial by summary court-martial and proceed to trial by special or general court-martial at which he may have counsel. [Footnote 23] Thus, he stands in a considerably more favorable position than the probationer in Gagnon who, though subject to the possibility of longer periods of incarceration, had no such absolute right to counsel. [Footnote 24]It is true that, by exercising this option the accused subjects himself to greater possible penalties imposed in the special court-martial proceeding. However, we do not find that possible detriment to be constitutionally decisive. We have frequently approved the much more difficult decision, daily faced by civilian criminal defendants, to plead guilty to a lesser included offense. E.g., Brady v. United States, 397 U. S. 742, 397 U. S. 749-750 (1970). In such a case, the defendant gives up not only his right to counsel but his right to any trial at all. Furthermore, Page 425 U. S. 48 if he elects to exercise his right to trial he stands to be convicted of a more serious offense which will likely bear increased penalties. [Footnote 25]Such choices are a necessary part of the criminal justice system:"The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow. McMann v. Richardson, 397 U.S. at 397 U. S. 769. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose."McGautha v. California, 402 U. S. 183, 402 U. S. 213 (1971).We therefore agree with the defendants that neither the Sixth nor the Fifth Amendment to the United States Constitution empowers us to overturn the congressional determination that counsel is not required in summary courts-martial. The judgment of the Court of Appeals is thereforeReversed

U.S. Supreme CourtMiddendorf v. Henry, 425 U.S. 25 (1976)Middendorf v. HenryNo. 74-175Argued January 22, 1975Reargued November 5, 1975Decided March 24, 1976*425 U.S. 25SyllabusThe Uniform Code of Military Justice (UCMJ) provides four methods of disposing of cases involving servicemen's offenses: general, special, and summary courts-martial, and disciplinary punishment pursuant to Art. 15 of the UCMJ. General courts-martial and special courts-martial, which may impose substantial penalties, resemble judicial proceedings, nearly always presided over by lawyer judges, with lawyer counsel for both sides. Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative method of dealing with most minor offenses. A summary court-martial, lying in between the informal Art. 15 procedure and the judicial procedures of general and special courts-martial, is designed "to exercise justice promptly for relatively minor offenses" in an informal proceeding conducted by a single commissioned officer, acting as judge, factfinder, prosecutor, and defense counsel (with jurisdiction only over noncommissioned officers and other enlisted personnel), who can impose as maximum sentences: 30 days' confinement at hard labor or 45 days' hard labor without confinement; two months' restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month. If the accused does not consent to trial by summary court-martial, the case will either be referred to a special or general court-martial, or be dismissed. Various enlisted members of the Marine Corps (hereinafter plaintiffs) charged for the most part with "unauthorized absences" brought this class action in District Court challenging the authority of the military to try them at summary courts-martial without providing them with counsel. All the plaintiffs had consented Page 425 U. S. 26 in writing to be tried by summary court-martial, without counsel, after having been advised that they could be tried by special court-martial with counsel provided and having been apprised of the maximum sentences imposable under the two procedures. The District Court entered a judgment for the plaintiffs. The Court of Appeals vacated the judgment and remanded the ease for reconsideration in the light of its opinion in Daigle v. Warner, 490 F.2d 358, wherein it had held that there is no right to counsel under the Sixth Amendment in summary courts-martial and no absolute Fifth Amendment due process right in every case in which a military defendant might be imprisoned, but that, in line with Gagnon v. Scarpelli, 411 U. S. 778, counsel is required where the accused makes a request based on a timely and colorable claim (1) that he has a defense and (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present his defense.Held:1. There is no Sixth Amendment right to counsel in a summary court-martial, since that proceeding is not a "criminal prosecution" as that term is used in the Amendment. Pp. 425 U. S. 33-42.(a) Even in a civilian context, the fact that a proceeding will result in the loss of liberty does not ipso facto mean that the proceeding is a "criminal prosecution" for Sixth Amendment purposes, Gagnon v. Scarpelli, supra, at 411 U. S. 788-789; In re Gault, 387 U. S. 1, 387 U. S. 30; and when it is taken into account that a summary court-martial occurs in the military, rather than a civilian, community, the considerations supporting the conclusion that it is not a "criminal prosecution" are at least as strong as the factors that were held dispositive in those cases. The charges against most of the plaintiffs here have no common law counterpart and carry little popular opprobrium; nor are the penalties comparable to civilian sanctions. Pp. 425 U. S. 34-40.(b) A summary court-martial, unlike a criminal trial; is not an adversary proceeding. Pp. 425 U. S. 40-42.2. Nor does the Due Process Clause of the Fifth Amendment require that counsel be provided the accused in a summary court-martial proceeding. Pp. 425 U. S. 42-48.(a) Though the loss of liberty which may result from a summary court-martial implicates due process, the question whether that embodies a right to counsel depends upon an analysis of the interests of the accused and those of the regime to which he is subject, and in making that analysis deference must be Page 425 U. S. 27 given to Congress' determination under Art. I, § 8, of the Constitution, that counsel should not be provided in that type of proceeding. P. 425 U. S. 43.(b) Supporting Congress' decision is the fact that the presence of counsel would convert a brief, informal hearing, which may be readily convened and concluded, into an attenuated proceeding, preempting the time of military personnel and thus consuming military resources to an unwarranted degree. See United States ex rel. Toth v. Quarles, 350 U. S. 11, 350 U. S. 17. Pp. 425 U. S. 45-46.(c) The accused who feels that counsel is essential in the situation envisaged by the Court of Appeals in reliance on Daigle v. Warner, supra, may elect trial, with counsel provided, in a special court-martial proceeding, and though he would thus expose himself to the possibility of greater penalties, a decision involving that kind of choice, which often occurs in civilian criminal cases, is not constitutionally decisive. Pp. 425 U. S. 46-48.493 F.2d 1231, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, in which BLACKMUN, J., joined, post, p. 425 U. S. 49. STEWART, J., filed a dissenting statement, post, p. 425 U. S. 49. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 425 U. S. 51. STEVENS, J., took no part in the consideration or decision of the cases. Page 425 U. S. 28

1991_90-1150

state a claim, Fed. Rule Civ. Proc. 12(b)(6), and dismissed petitioner's pendent state claims.At the same time, the District Court granted respondent's motion for Rule 11 sanctions, awarding attorney's fees of $22,625 against Willy and his attorney, Young, jointly and severally. The District Court found that the filings made by plaintiff's counsel "create[d] a blur of absolute confusion." App. to Pet. for Cert. A-7. These included a 1,200-page, unindexed, unnumbered pile of materials that the District Court determined "to be a conscious and wanton affront to the judicial process, this Court, and opposing counsel" that was "irresponsible at a minimum and at worst intentionally harassing." Ibid. Petitioner's sanctionable behavior also included careless pleading, such as reliance on a nonexistent Federal Rule of Evidence. Ibid. None of the sanctionable conduct was related to petitioner's initial effort to convince the District Court that it was without subject-matter jurisdiction.On appeal, the Court of Appeals for the Fifth Circuit concluded that the District Court had lacked subject-matter jurisdiction because the complaint raised no claims arising under federal law. 855 F.2d 1160 (1988). It therefore reversed the District Court order dismissing the claims and instructed that the case be remanded to state court. The court also upheld the District Court's decision to award Rule 11 sanctions, although it remanded the case to the District Court to determine the amount. On remand the District Court recomputed the Rule 11 sanctions and imposed sanctions in the amount of $19,307, the amount of attorney's fees that respondent had incurred in responding to petitioner's sanctionable conduct. The Court of Appeals affirmed. 915On this second appeal, the Court of Appeals rejected petitioner's contention that, in the absence of subject-matter jurisdiction, the District Court was constitutionally without134authority to impose Rule 11 sanctions. It concluded that the authority to impose Rule 11 sanctions rested in the "inherent powers" of the federal courts-those powers " 'necessary to the exercise of all others.'" Id., at 966 (quoting Roadway Express, Inc. v. Piper, 447 U. S. 752, 764 (1980)). The court concluded that the exercise of Rule 11 powers was an example of such inherent powers. It principally relied on our recent decision in Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990), in which we upheld a Rule 11 sanction imposed for filing a frivolous complaint even though the sanction order was entered after the plaintiff voluntarily dismissed its suit.Before this Court, petitioner advances two claims. The first is that Congress, in acquiescing in the adoption of the Federal Rules of Civil Procedure, did not "authoriz[e] recovery of fees or costs against parties who prevail on jurisdictional grounds." Brief for Petitioner 18. Petitioner finds in both the Rules Enabling Act and the Rules the "implicit premise ... that rules of practice and procedure are not necessary for disputes beyond the judicial power conferred by Article III." Id., at 28. Phrased this way, the petitioner's contention is correct, but it does not dispose of this case.The Rules Enabling Act, 28 U. S. C. § 2072, authorizes the Court to "prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts .... " Those rules may not "abridge, enlarge or modify any substantive right." In response, we have adopted the Federal Rules of Civil Procedure. Rule 1 governs their scope. It provides that "[t]hese rules govern the procedure in the United States district courts in all suits of a civil nature .... " Rule 81(c) specifically provides that the Rules "apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal." This expansive language contains no express ex-135ceptions and indicates a clear intent to have the Rules, including Rule 11, apply to all district court civil proceedings.1But in Sibbach v. Wilson & Co., 312 U. S. 1 (1941), we observed that federal courts, in adopting rules, were not free to extend or restrict the jurisdiction conferred by a statute. Id., at 10. Such a caveat applies a fortiori to any effort to extend by rule the judicial power of the United States described in Article III of the Constitution. The Rules, then, must be deemed to apply only if their application will not impermissibly expand the judicial authority conferred by Article III. We must therefore examine petitioner's second, and related contention, that the District Court action in this case lies outside the range of action constitutionally permitted to an Article III court.Petitioner begins by pointing out that Article III limits the subject-matter jurisdiction of the federal courts to certain "cases or controversies." Brief for Petitioner 11. He then contends that the District Court's exercise of judicial power to grant Rule 11 sanctions must have been an unconstitutional act because, in the absence of subject-matter ju-1 Rule 11 requires that every paper filed with the District Court be signed by an attorney or by the party. The signature constitutes a certificate by the signer that"to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."A pleading determined to be in contravention of the Rule subjects both the signer and the party he represents to "an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee." Ibid. We take as given that the District Court correctly determined that petitioner's filings were insufficiently well grounded to satisfy the Rule, the payment of attorney's fees was a reasonable sanction in response, and the imposition of joint and several liability was appropriate.136risdiction, the district court lacks "a substantive source of judicial power, beyond that conferred by Article IlL" Id., at 18. Thus, according to petitioner, even had Congress attempted to grant the courts authority to impose sanctions in a case such as this, the grant would run afoul of Article III.In making this claim, petitioner acknowledges that there are some circumstances in which federal courts may impose attorney's fees or costs, even where the court eventually proves to be without subject-matter jurisdiction.2 He contends, however, that such instances are limited to a narrowly prescribed category of cases and do not include the situation in which sanctions are imposed against a party who has successfully contested jurisdiction.We think petitioner's contentions flawed in several respects. Article I, § 8, cl. 9, authorizes Congress to establish the lower federal courts. From almost the founding days of this country, it has been firmly established that Congress, acting pursuant to its authority to make all laws "necessary and proper" 3 to their establishment, also may enact laws regulating the conduct of those courts and the means by which their judgments are enforced. See Wayman v. Southard, 10 Wheat. 1,21-22 (1825); Hanna v. Plumer, 380 U. S. 460, 473 (1965) (describing "long-recognized power of Congress to prescribe housekeeping rules for federal courts"). Indeed, in acknowledging the many circumstances in which sanctions can be imposed, several of which have a statutory basis, petitioner effectively concedes both Congress' general power to regulate the courts and its specific2 See Brief for Petitioner 18, n. 14, acknowledging 28 U. S. C. § 1919 (authorizing "payment of just costs" in any action or suit dismissed for lack of jurisdiction) and 28 U. S. C. § 1447(c) (authorizing attorney's fees and costs for wrongful removal). See also Brief for Petitioner 22-27, admitting federal-court authority to exercise "inherent powers" to sanction through attorney's fees and costs or criminal contempt those who obstruct a court's effort to determine its jurisdiction.3 Art. I, § 8, cl. 18.137power to authorize the imposition of sanctions. See n. 2, supra.This leaves only petitioner's contention that Rule 11 sanctions must be aborted because at a time after the sanctionable conduct occurred, it was determined by the Court of Appeals that the District Court lacked subject-matter jurisdiction. A final determination of lack of subject-matter jurisdiction of a case in a federal court, of course, precludes further adjudication of it. But such a determination does not automatically wipe out all proceedings had in the district court at a time when the district court operated under the misapprehension that it had jurisdiction. In Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940), we held that a judgment rendered in a case in which it was ultimately concluded that the District Court was without jurisdiction was nonetheless res judicata on collateral attack made by one of the parties. See also Stoll v. Gottlieb, 305 U. S. 165 (1938). In Stoll, we observed that the practical concern with providing an end to litigation justifies a rule preventing collateral attack on subject-matter jurisdiction. Id., at 172.In United States v. Mine Workers, 330 U. S. 258 (1947), we upheld a criminal contempt citation even on the assumption that the District Court issuing the citation was without jurisdiction over the underlying action. In that case, the question was raised on direct review and not collateral attack. We think the same concern expressed in these casesthe maintenance of orderly procedure, even in the wake of a jurisdiction ruling later found to be mistaken-justifies the conclusion that the sanction ordered here need not be upset.The District Court order which the petitioner seeks to upset is one that is collateral to the merits. We recently had occasion to examine Rule l1's scope and purpose in great detail in Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990). The challenge in that case was to an order imposing Rule 11 sanctions for filing a frivolous complaint, entered138after the plaintiff had voluntarily dismissed his action. In the course of our discussion we noted that "[i]t is well established that a federal court may consider collateral issues after an action is no longer pending .... [An] imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate." Id., at 395-396. Such an order implicates no constitutional concern because it "does not signify a district court's assessment of the legal merits of the complaint." Id., at 396. It therefore does not raise the issue of a district court adjudicating the merits of a "case or controversy" over which it lacks jurisdiction.Petitioner places great weight on our decision in United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U. S. 72 (1988), a case involving a civil contempt order entered by the District Court. The contemnors, two nonparty witnesses, refused to comply with a District Court document subpoena. The District Court found them in civil contempt and ordered them to pay a fine of $50,000 per day. The contemnors, as was their right, immediately appealed the contempt order, challenging the District Court's subjectmatter jurisdiction. We held that the Court of Appeals was obligated to consider the jurisdictional challenge in full, rather than simply contenting itself with an inquiry into whether the District Court colorably had jurisdiction. We further concluded that if the District Court was found to be lacking subject-matter jurisdiction, that the contempt order would also fall. Focusing on this second part of our decision, petitioner cites Catholic Conference as establishing the proposition that a sanction must fall if imposed when jurisdiction is in fact absent.4Catholic Conference does not stand for such a broad assertion. A civil contempt order has much different purposes4 Petitioner does acknowledge certain limited exceptions, see n. 2, supra.139than a Rule 11 sanction. Civil contempt is designed to force the contemnor to comply with an order of the court, id., at 79; Rule 11 is designed to punish a party who has already violated the court's rules. Cooter & Gell, supra, at 396. Given that civil contempt is designed to coerce compliance with the court's decree, it is logical that the order itself should fall with a showing that the court was without authority to enter the decree. Accord, United States v. Mine Workers, supra.The interest in having rules of procedure obeyed, by contrast, does not disappear upon a subsequent determination that the court was without subject-matter jurisdiction. Courts do make mistakes; in cases such as Catholic Conference it may be possible immediately to seek relief in an appellate tribunal. But where such an immediate appeal is not authorized, there is no constitutional infirmity under Article III in requiring those practicing before the courts to conduct themselves in compliance with the applicable procedural rules in the interim, and to allow the courts to impose Rule 11 sanctions in the event of their failure to do SO.5For the foregoing reasons, the judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1991SyllabusWILLY v. COASTAL CORP. ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 90-1150. Argued December 3, 1991-Decided March 3, 1992After petitioner Willy sued respondent Coastal Corporation in Texas state court, alleging that Coastal fired him for refusing to participate in its violation of federal and state environmental laws, Coastal removed the case to Federal District Court. That court rejected Willy's argument that it lacked subject-matter jurisdiction and dismissed the case for failure to state a claim. It also imposed sanctions against him, pursuant to Federal Rule of Civil Procedure 11, based on conduct in the case that was unrelated to petitioner's effort to convince the court that it lacked jurisdiction. The Court of Appeals concluded that the District Court lacked subject-matter jurisdiction, but upheld the court's decision to award sanctions and remanded the case for the court to determine the amount. On a second appeal, the Court of Appeals rejected Willy's argument that the District Court had no authority to impose sanctions in the absence of subject-matter jurisdiction.Held: A court may impose Rule 11 sanctions in a case in which the district court is later determined to be without subject-matter jurisdiction. Pp. 134-139.(a) While the expansive language of Rules 1 and 81(c) indicates a clear intent to have the Rules, including Rule 11, apply to all district court civil proceedings, the Rules must be deemed to apply only if their application will not impermissibly expand the judicial authority conferred by Article III, see Sibbach v. Wilson & Co., 312 U. S. 1. Pp. 134-135.(b) The District Court's order in this case does not lie outside the range of action constitutionally permitted to an Article III court. Willy concedes that Congress has the power to regulate the courts and to authorize the imposition of sanctions. He errs in contending that Rule 11 sanctions must be aborted whenever it is determined that a court lacked jurisdiction at the time the objectionable conduct occurred. A court's concern with the maintenance of orderly procedure, even in the wake of a jurisdictional ruling later found to be mistaken, justifies the conclusion that the sanction here need not be upset. See, e. g., United States v. Mine Workers, 330 U. S. 258. Because it deals with the issue whether the court's rules were violated, the instant order is collateral to the merits of the case. Thus, it implicates no constitutional concern because it does not deal with the court's assessment of the complaint's132legal merits, over which the court lacked jurisdiction. See Cooter & Gell v. Hartmarx Corp., 496 U. S. 384. And the District Court's interest in having rules of procedure obeyed did not disappear with the subsequent determination that it lacked subject-matter jurisdiction. United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U. S. 72, distinguished. Pp. 135-139.915 F.2d 965, affirmed.REHNQUIST, C. J., delivered the opinion for a unanimous Court.Michael A. Maness argued the cause and filed briefs for petitioner.Michael L. Beatty argued the cause for respondents.With him on the brief were Carter G. Phillips, Mark D. Hopson, Lawrence P. Ellsworth, and Robert C. DeMoss.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.We granted certiorari to decide whether a federal district court may impose sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure in a case in which the district court is later determined to be without subject-matter jurisdiction. 501 U. S. 1216 (1991). We conclude that in the circumstances presented here it may do so.Petitioner Willy sued respondent Coastal Corporation (Coastal or respondent) in Texas state court, raising a variety of claims relating to Coastal's decision to terminate his employment as "in-house" counsel. Petitioner alleged that he had been fired due to his refusal to participate in respondent's violation of various federal and state environmental laws. Respondent removed the case to Federal District Court, claiming original federal-question jurisdiction under 28 U. S. C. §§ 1331,1441. Petitioner objected to the removal, claiming that his case did not "arise under" federal law, see § 1331, but the District Court disagreed and concluded that it had subject-matter jurisdiction. The District Court subsequently granted respondent's motion to dismiss for failure to133Full Text of Opinion

1985_84-1661

JUSTICE BRENNAN delivered the opinion of the Court.The question we address in this case is whether the restrictions on federal habeas review of Fourth Amendment claims announced in Stone v. Powell, 428 U. S. 465 (1976), should be extended to Sixth Amendment claims of ineffective assistance of counsel where the principal allegation and manifestation of inadequate representation is counsel's failure to file a timely motion to suppress evidence allegedly obtained in violation of the Fourth Amendment.IRespondent, Neil Morrison, was convicted by the State of New Jersey of raping a 15-year-old girl. The case presented by the State at respondent's bench trial consisted of scientific evidence and of the testimony of the victim, her mother, and the police officers who handled the victim's complaint.The victim testified that Morrison, who was her employer, had taken her to his apartment, where he forced her onto his bed and raped her. Upon returning home, the girl related the incident to her mother, who, after first summoning Morrison and asking for his account of events, phoned the police. The police came to the victim's home and transported her to the hospital, where she was examined and tested for indicia of a sexual assault.The State also called as a witness Detective Dolores Most, one of the officers who investigated the rape complaint. Most testified that she accompanied the victim to Morrison's apartment building a few hours after the rape. Morrison was not at home, but another tenant in the building let them into respondent's one-room apartment. While there, Most stated, she seized a sheet from respondent's bed.At this point in the testimony, respondent's counsel objected to the introduction of the sheet and to any testimony concerning it on the ground that Most had seized it without a search warrant. New Jersey Court Rules, however, require Page 477 U. S. 369 that suppression motions be made within 30 days of indictment unless the time is enlarged by the trial court for good cause. N.J.Ct.Rule 3:5-7. Because the 30-day deadline had long since expired, the trial judge ruled that counsel's motion was late. Defense counsel explained to the court that he had not heard of the seizure until the day before, when trial began, and that his client could not have known of it, because the police had not left a receipt for the sheet. The prosecutor responded that defense counsel, who had been on the case from the beginning, had never asked for any discovery. Had trial counsel done so, the prosecutor observed, police reports would have revealed the search and seizure. The prosecutor stated further that, one month before trial, he had sent defense counsel a copy of the laboratory report concerning the tests conducted on stains and hairs found on the sheets.Asked repeatedly by the trial court why he had not conducted any discovery, respondent's attorney asserted that it was the State's obligation to inform him of its case against his client, even though he made no request for discovery. The judge rejected this assertion and stated:"I hate to say it, but I have to say it, that you were remiss. I think this evidence was there and available to you for examination and inquiry."2 Tr. 114. Defense counsel then attempted to justify his omission on the ground that he had not expected to go to trial, because he had been told that the victim did not wish to proceed. The judge rejected this justification also, reminding counsel that, once an indictment is handed down, the decision to go through with the complaint no longer belongs to the victim, and that it requires a court order to dismiss an indictment. Id. at 115. While the judge agreed that defense counsel had "br[ought] about a very valid basis . . . for suppression . . . if the motion had been brought and timely made," he refused "to entertain a motion to suppress in the middle of the trial." Id. at 110. Page 477 U. S. 370The State then called a number of expert witnesses who had conducted laboratory tests on the stains and hairs found on the sheet, on a stain found on the victim's underpants, and on blood and hair samples provided by the victim and respondent. This testimony established that the bedsheet had been stained with semen from a man with type O blood, that the stains on the victim's underwear similarly exhibited semen from a man with type O blood, that the defendant had type O blood, that vaginal tests performed on the girl at the hospital demonstrated the presence of sperm, and that hairs recovered from the sheet were morphologically similar to head hair of both Morrison and the victim. Defense counsel aggressively cross-examined all of the expert witnesses.The defense called four friends and acquaintances of the defendant and the defendant himself in an attempt to establish a different version of the facts. The defense theory was that the girl and her mother fabricated the rape in order to punish respondent for being delinquent with the girl's wages. According to Morrison, the girl and her mother had not intended to go through with the prosecution, but ultimately they found it impossible to extricate themselves from their lies. Morrison admitted that he had taken the girl to his apartment, but denied having had intercourse with her. He claimed that his sexual activity with other women accounted for the stains on his sheet, and that a hair from the girl's head was on his sheet because she had seated herself on his bed. Defense counsel also implied that the girl's underwear and vaginal secretions tested positive for semen and sperm because she probably had recently engaged in relations with the father of her baby. Counsel did not, however, call the girl's boyfriend to testify or have him tested for blood type, an omission upon which the prosecution commented in closing argument.The trial judge, in rendering his verdict, noted: "As in most cases, nothing is cut and dry. There are discrepancies in the State's case, there are discrepancies in the defense as Page 477 U. S. 371 it's presented." 6 Tr. 86. After pointing out some of the more troublesome inconsistencies in the testimony of several of the witnesses, the judge declared his conclusion that the State had proved its case beyond a reasonable doubt.After trial, respondent dismissed his attorney and retained new counsel for his appeal. On appeal, respondent alleged ineffective assistance of counsel and error in the trial court's refusal to entertain the suppression motion during trial. The appeals court announced summarily that it found no merit in either claim, and affirmed respondent's conviction. The Supreme Court of New Jersey subsequently denied respondent's petition for discretionary review. Respondent then sought postconviction relief in the New Jersey Superior Court, from the same judge who had tried his case. There Morrison presented the identical issues he had raised on direct appeal. The court denied relief on the ground that it was bound by the appellate court's resolution of those issues against respondent.Respondent then sought a writ of habeas corpus in Federal District Court, again raising claims of ineffective assistance of counsel and erroneous admission of illegally seized evidence. The District Court ruled that, because respondent did not allege that the State had denied him an opportunity to litigate his Fourth Amendment claim fully and fairly, direct consideration of this claim on federal habeas review was barred by Stone v. Powell, 428 U. S. 465 (1976). 579 F. Supp. 796 (NJ 1984). The District Court did find respondent's ineffective assistance claim meritorious.Because the District Court rendered its decision before this Court announced the standards to be applied to claims of constitutionally deficient representation in Strickland v. Washington, 466 U. S. 668 (1984), the District Court relied on Third Circuit precedent for guidance, particularly United States v. Baynes, 687 F.2d 659 (1982), and Moore v. United States, 432 F.2d 730 (1970). Like Strickland, these cases required a two-pronged inquiry into counsel's competence and Page 477 U. S. 372 into the prejudicial effect of counsel's unprofessional errors. With respect to trial counsel's competence, the District Court used as its standard the "customary skill and knowledge which normally prevails at the time and place.'" 579 F. Supp. at 802 (quoting Moore, supra, at 736). Noting that this standard "`entails a careful inquiry into the particular circumstances surrounding each case,'" 579 F. Supp. at 802 (quoting Baynes, supra, at 665), the court concluded:"[C]ounsel failed to conduct any meaningful pretrial discovery, and thus was totally unaware that certain damaging evidence might have been the appropriate subject for a suppression motion. Counsel seems to have acted on the misapprehension that the State was obligated to turn over anything that the defense might be interested in examining. Little else was offered by way of excuse by [Morrison's] lawyer in the face of repeated criticism by the state trial judge, except for counsel's rather remarkable attempt to justify his conduct by noting that, up until trial, he had been told that the victim 'didn't want to go ahead with this case.' . . . Based on the unmitigated negligence of petitioner's trial counsel in failing to conduct any discovery, combined with the likelihood of success of a suppression motion had it been timely made, we find that petitioner was deprived of effective representation."579 F. Supp. at 802-803.The District Court then determined that, measured by the harmless-beyond-a-reasonable-doubt standard prescribed by Baynes, supra, respondent had been prejudiced by counsel's ineffectiveness, and issued a conditional writ of habeas corpus ordering Morrison's release unless New Jersey should retry him.Although the District Court did not address the relevance of Stone, supra, to respondent's Sixth Amendment ineffective assistance of counsel claim, the Court of Appeals did. Relying on both the language of Stone and the different natures of Fourth and Sixth Amendment claims, the Court of Page 477 U. S. 373 Appeals concluded that Stone should not be extended to bar federal habeas consideration of Sixth Amendment claims based on counsel's alleged failure competently to litigate Fourth Amendment claims. 752 F.2d 918 (1985). Because Strickland had recently been decided by this Court, the Court of Appeals reviewed the District Court's determination of ineffective assistance under Strickland's test. The Court of Appeals determined that respondent's trial counsel had been "grossly ineffective," 752 F.2d at 922, but vacated and remanded for the District Court to consider whether, under the standards set forth in Strickland, supra, respondent had been prejudiced by his attorney's incompetence.Petitioners, the Attorney General of New Jersey and the Superintendent of Rahway State Prison, petitioned for certiorari. We granted their petition, 474 U.S. 815 (1985), and now affirm.IIPetitioners urge that the Sixth Amendment veil be lifted from respondent's habeas petition to reveal what petitioners argue it really is -- an attempt to litigate his defaulted Fourth Amendment claim. They argue that, because respondent's claim is in fact, if not in form, a Fourth Amendment one, Stone directly controls here. Alternatively, petitioners maintain that, even if Morrison's Sixth Amendment claim may legitimately be considered distinct from his defaulted Fourth Amendment claim, the rationale and purposes of Stone are fully applicable to ineffective assistance claims where the principal allegation of inadequate representation is counsel's failure to file a timely motion to suppress evidence allegedly obtained in violation of the Fourth Amendment. Stone, they argue, will be emasculated unless we extend its bar against federal habeas review to this sort of Sixth Amendment claim. Finally, petitioners maintain that consideration of defaulted Fourth Amendment claims in Sixth Amendment federal collateral proceedings would violate principles of comity and Page 477 U. S. 374 federalism and would seriously interfere with the State's interest in the finality of its criminal convictions. [Footnote 1]AWe do not share petitioners' perception of the identity between respondent's Fourth and Sixth Amendment claims. While defense counsel's failure to make a timely suppression motion is the primary manifestation of incompetence and source of prejudice advanced by respondent, the two claims are nonetheless distinct, both in nature and in the requisite elements of proof.Although it is frequently invoked in criminal trials, the Fourth Amendment is not a trial right; the protection it affords against governmental intrusion into one's home and affairs pertains to all citizens. The gravamen of a Fourth Amendment claim is that the complainant's legitimate expectation of privacy has been violated by an illegal search or seizure. See, e.g., Katz v. United States, 389 U. S. 347 (1967). In order to prevail, the complainant need prove only that the search or seizure was illegal and that it violated his reasonable expectation of privacy in the item or place at issue. See, e.g., Rawlings v. Kentucky, 448 U. S. 98, 104 (1980).The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process. E.g., Gideon v. Wainwright, 372 U. S. 335, 372 U. S. 344 (1963). The essence of an ineffective assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect. See, e.g., Strickland v. Washington, 466 U.S. at 466 U. S. 686; United States v. Cronic, 466 U. S. 648, Page 477 U. S. 375 466 U. S. 655-657 (1984). In order to prevail, the defendant must show both that counsel's representation fell below an objective standard of reasonableness, Strickland, 466 U.S. at 466 U. S. 688, and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 466 U. S. 694. Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice. Thus, while respondent's defaulted Fourth Amendment claim is one element of proof of his Sixth Amendment claim, the two claims have separate identities and reflect different constitutional values.BWe also disagree with petitioners' contention that the reasoning and purposes of Stone are fully applicable to a Sixth Amendment claim which is based principally on defense counsel's failure to litigate a Fourth Amendment claim competently.At issue in Stone was the proper scope of federal collateral protection of criminal defendants' right to have evidence, seized in violation of the Fourth Amendment, excluded at trial in state court. In determining that federal courts should withhold habeas review where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Court found it crucial that the remedy for Fourth Amendment violations provided by the exclusionary rule "is not a personal constitutional right." 428 U.S. at 428 U. S. 486; see also id. at 428 U. S. 495, n. 37. The Court expressed the understanding that the rule "is not calculated to redress the injury to the privacy of the victim of the search or seizure," id. at 428 U. S. 486; instead, the Court explained, the exclusionary rule is predominately a "judicially created'" structural remedy Page 477 U. S. 376 "`designed to safeguard Fourth Amendment rights generally through its deterrent effect.'" Ibid. (quoting United States v. Calandra, 414 U. S. 338, 414 U. S. 348 (1974)).The Court further noted that"[a]s in the case of any remedial device, 'the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served,'"428 U.S. at 428 U. S. 486-487 (quoting Calandra, supra, at 414 U. S. 348), and that the rule has not been extended to situations such as grand jury proceedings, 428 U.S. at 428 U. S. 486-487, (citing Calandra, supra), and impeachment of a defendant who testifies broadly in his own behalf, 428 U.S. at 428 U. S. 488 (citing Walder v. United States, 347 U. S. 62 (1954)), where the rule's costs would outweigh its utility as a deterrent to police misconduct. Applying this "pragmatic analysis," 428 U.S. at 428 U. S. 488, to the question whether prisoners who have been afforded a full and fair opportunity in state court to invoke the exclusionary rule may raise their Fourth Amendment claims on federal habeas review, the Court determined that they may not. While accepting that the exclusionary rule's deterrent effect outweighs its costs when enforced at trial and on direct appeal, the Court found any "additional contribution . . . of the consideration of search-and-seizure claims . . . on collateral review," id. at 428 U. S. 493, to be too small in relation to the costs to justify federal habeas review. Id. at 428 U. S. 492-495.In Stone, the Court also made clear that its "decision . . . [was] not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally." Id. at 428 U. S. 495, n. 37 (emphasis in original). Rather, the Court simply"reaffirm[ed] that the exclusionary rule is a judicially created remedy. rather than a personal constitutional right, . . . and . . . emphasiz[ed] the minimal utility of the rule"in the context of federal collateral proceedings. Ibid. See also Rose v. Mitchell, 443 U. S. 545, 443 U. S. 560 (1979) ("in Stone v. Powell, . . . the Court carefully limited the reach of its opinion . . . to cases involving the judicially created exclusionary Page 477 U. S. 377 rule, which had minimal utility when applied in a habeas corpus proceeding"); Jackson v. Virginia, 443 U. S. 307, 443 U. S. 323 (1979) (declining to extend Stone to claims by state prisoners that, in violation of the constitutional standard set forth in In re Winship, 397 U. S. 358 (1970), the evidence in support of their convictions was not sufficient to permit a rational trier of fact to find guilt beyond a reasonable doubt).In contrast to the habeas petitioner in Stone, who sought merely to avail himself of the exclusionary rule, Morrison seeks direct federal habeas protection of his personal right to effective assistance of counsel.The right of an accused to counsel is beyond question a fundamental right. See, e.g., Gideon, 372 U.S. at 372 U. S. 344 ("The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours"). Without counsel the right to a fair trial itself would be of little consequence, see, e.g., Cronic, supra, at 466 U. S. 653; United States v. Ash, 413 U. S. 300, 413 U. S. 307-308 (1973); Argersinger v. Hamlin, 407 U. S. 25, 407 U. S. 31-32 (1972); Gideon, supra, at 372 U. S. 343-345; Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 462-463 (1938); Powell v. Alabama, 287 U. S. 45, 287 U. S. 68-69 (1932), for it is through counsel that the accused secures his other rights. Maine v. Moulton, 474 U. S. 159, 474 U. S. 168-170 (1985); Cronic, supra, at 466 U. S. 653; see also, Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956) ("Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have"). The constitutional guarantee of counsel, however, "cannot be satisfied by mere formal appointment," Avery v. Alabama, 308 U. S. 444, 308 U. S. 446 (1940)."An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair."Strickland, supra, at 466 U. S. 685. In other words, the right to counsel is the right to effective assistance of counsel. Evitts v. Lucey, 469 U. S. 387, 469 U. S. 395-396 (1985); Strickland, supra, at Page 477 U. S. 378 466 U. S. 686; Cronic, 466 U.S. at 466 U. S. 654; Cuyler v. Sullivan, 446 U. S. 335, 446 U. S. 344 (1980); McMann v. Richardson, 397 U. S. 759, 397 U. S. 771, n. 14 (1970). [Footnote 2]Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation. A layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance, cf. Powell v. Alabama, supra, at 287 U. S. 69; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case. Indeed, an accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal. Were we to extend Stone and hold that criminal defendants may not raise ineffective assistance claims that are based primarily on incompetent handling of Fourth Amendment issues on federal habeas, we would deny most defendants whose trial attorneys performed incompetently in this regard the opportunity to vindicate their right to effective trial counsel. We would deny all defendants whose appellate counsel performed inadequately with respect to Fourth Amendment issues the opportunity to protect their right to effective appellate counsel. See Evitts, supra. Thus, we cannot say, as the Court was able to say in Stone, that restriction of federal habeas review would not severely interfere with the protection of the constitutional right asserted by the habeas petitioner. [Footnote 3] Page 477 U. S. 379Furthermore, while the Court may be free, under its analysis in Stone, to refuse for reasons of prudence and comity [Footnote 4] to burden the State with the costs of the exclusionary rule in contexts where the Court believes the price of the rule to exceed its utility, the Constitution constrains our ability to allocate as we see fit the costs of ineffective assistance. The Sixth Amendment mandates that the State bear the risk of constitutionally deficient assistance of counsel. See Murray v. Carrier, post at 477 U. S. 488 (where a "procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State"); Cuyler, supra, at 446 U. S. 344 ("The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance"); see also Evitts, supra, at 469 U. S. 396 ("The constitutional mandate is addressed to the action of the State").We also reject the suggestion that criminal defendants should not be allowed to vindicate through federal habeas review their right to effective assistance of counsel where counsel's primary error is failure to make a timely request for the exclusion of illegally seized evidence -- evidence which is "typically reliable and often the most probative information bearing on the guilt or innocence of the defendant." Stone, 428 U.S. at 428 U. S. 490. While we have recognized that the"'premise of our adversary system of criminal justice . . . that partisan advocacy . . . will best promote the ultimate objective that the guilty be convicted and the innocent go Page 477 U. S. 380 free,'"Evitts, 469 U.S. at 469 U. S. 394, quoting Herring v. New York, 422 U. S. 853, 422 U. S. 862 (1976), underlies and gives meaning to the right to effective assistance, Cronic, supra, at 466 U. S. 666-656, we have never intimated that the right to counsel is conditioned upon actual innocence. The constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt. [Footnote 5] Furthermore, petitioners do not suggest that an ineffective assistance claim asserted on direct review would fail for want of actual prejudice whenever counsel's primary error is failure to make a meritorious objection to the admission of reliable evidence the exclusion of which might have affected the outcome of the proceeding. We decline to hold that the scope of the right to effective assistance of counsel is altered in this manner simply because the right is asserted on federal habeas review, rather than on direct review.CStone's restriction on federal habeas review, petitioners warn, will be stripped of all practical effect unless we extend it to Sixth Amendment claims based principally on defense counsel's incompetent handling of Fourth Amendment issues. Petitioners predict that every Fourth Amendment claim that fails or is defaulted in state court will be fully litigated in federal habeas proceedings in Sixth Amendment guise and that, as a result, many state court judgments will be disturbed. Page 477 U. S. 381 They seem to believe that a prisoner need only allege ineffective assistance, and, if he has an underlying, meritorious Fourth Amendment claim, the writ will issue and the State will be obligated to retry him without the challenged evidence. Because it ignores the rigorous standard which Strickland erected for ineffective assistance claims, petitioners' forecast is simply incorrect.In order to establish ineffective representation, the defendant must prove both incompetence and prejudice. [Footnote 6] 466 U.S. at 466 U. S. 688. There is a strong presumption that counsel's performance falls within the "wide range of professional assistance," id. at 466 U. S. 689; the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms, and that the challenged action was not sound strategy. Id. at 466 U. S. 688-689. The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. Id. at 466 U. S. 689. The defendant shows that he was prejudiced by his attorney's ineffectiveness by demonstrating that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 466 U. S. 694. See also id. at 466 U. S. 695 (Where a defendant challenges his conviction, he must show that there exists "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt"). And, in determining the existence vel non of prejudice, the court "must consider the totality of the evidence before the judge or jury." Ibid. Page 477 U. S. 382As is obvious, Strickland's standard, although by no means insurmountable, is highly demanding. More importantly, it differs significantly from the elements of proof applicable to a straightforward Fourth Amendment claim. Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim like respondent's, a good Fourth Amendment claim alone will not earn a prisoner federal habeas relief. Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ and will be entitled to retrial without the challenged evidence. [Footnote 7]DIn summary, we reject petitioners' argument that Stone's restriction on federal habeas review of Fourth Amendment Page 477 U. S. 383 claims should be extended to Sixth Amendment ineffective assistance of counsel claims which are founded primarily on incompetent representation with respect to a Fourth Amendment issue. Where a State obtains a criminal conviction in a trial in which the accused is deprived of the effective assistance of counsel, the "State . . . unconstitutionally deprives the defendant of his liberty." Cuyler, 446 U.S. at 466 U. S. 343. The defendant is thus "in custody in violation of the Constitution," 28 U.S.C. § 2254(a), and federal courts have habeas jurisdiction over his claim. We hold that federal courts may grant habeas relief in appropriate cases, regardless of the nature of the underlying attorney error.IIIPetitioners also argue that respondent has not satisfied either the performance or the prejudice prong of the test for ineffective assistance of counsel set forth in Strickland. We address each component of that test in turn.AWith respect to the performance component of the Strickland test, petitioners contend that Morrison has not overcome the strong presumption of attorney competence established by Strickland. While acknowledging that this Court has said that a single, serious error may support a claim of ineffective assistance of counsel, Brief for Petitioners 33, n. 16 (citing Cronic, 466 U.S. at 466 U. S. 657, n. 20), [Footnote 8] petitioners argue that the mere failure to file a timely suppression motion alone does not constitute a per se Sixth Amendment violation. They maintain that the record "amply reflects that trial counsel crafted a sound trial strategy" and that, "[v]iewed in its entirety, counsel's pretrial investigation, Page 477 U. S. 384 preparation and trial performance were professionally reasonable." Brief for Petitioners 33 (footnotes and citations omitted). While we agree with petitioners' view that the failure to file a suppression motion does not constitute per se ineffective assistance of counsel, we disagree with petitioners' assessment of counsel's performance.In Strickland, we explained that"access to counsel's skill and knowledge is necessary to accord defendants the 'ample opportunity to meet the case of the prosecution' to which they are entitled."466 U.S. at 466 U. S. 685 (quoting Adams v. United States ex rel. McCann, 317 U. S. 269, 317 U. S. 275, 317 U. S. 276 (1942)). "Counsel . . . has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." 466 U.S. at 466 U. S. 688. Counsel's competence, however, is presumed, id. at 466 U. S. 689, and the defendant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms, and that the challenged action was not sound strategy. Id. at 466 U. S. 688-689. The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances. Id. at 466 U. S. 689. In making the competency determination, the court"should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case."Id. at 466 U. S. 690. Because that testing process generally will not function properly unless defense counsel has done some investigation into the prosecution's case and into various defense strategies, we noted that"counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."Id. at 466 U. S. 691. But, we observed,"a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."Ibid. Page 477 U. S. 385The trial record in this case clearly reveals that Morrison's attorney failed to file a timely suppression motion, not due to strategic considerations, but because, until the first day of trial, he was unaware of the search and of the State's intention to introduce the bedsheet into evidence. Counsel was unapprised of the search and seizure because he had conducted no pretrial discovery. Counsel's failure to request discovery, again, was not based on "strategy," but on counsel's mistaken beliefs that the State was obliged to take the initiative and turn over all of its inculpatory evidence to the defense, and that the victim's preferences would determine whether the State proceeded to trial after an indictment had been returned.Viewing counsel's failure to conduct any discovery from his perspective at the time he decided to forgo that stage of pretrial preparation, and applying a "heavy measure of deference," ibid., to his judgment, we find counsel's decision unreasonable, that is, contrary to prevailing professional norms. The justifications Morrison's attorney offered for his omission betray a startling ignorance of the law -- or a weak attempt to shift blame for inadequate preparation. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Ibid. Respondent's lawyer neither investigated, nor made a reasonable decision not to investigate, the State's case through discovery. Such a complete lack of pretrial preparation puts at risk both the defendant's right to an "ample opportunity to meet the case of the prosecution,'" id. at 466 U. S. 685 (quoting Adams, supra, at 317 U. S. 275), and the reliability of the adversarial testing process. See 466 U.S. at 466 U. S. 688.Petitioners attempt to minimize the seriousness of counsel's errors by asserting that the State's case turned far more on the credibility of witnesses than on the bedsheet and related testimony. Consequently, they urge, defense counsel's vigorous cross-examination, attempts to discredit witnesses, and effort to establish a different version of the facts Page 477 U. S. 386 lift counsel's performance back into the realm of professional acceptability.Strickland requires a reviewing court to"determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance."Id. at 466 U. S. 690. It will generally be appropriate for a reviewing court to assess counsel's overall performance throughout the case in order to determine whether the "identified acts or omissions" overcome the presumption that counsel rendered reasonable professional assistance. Since "[t]here are countless ways to provide effective assistance in any given case," id. at 466 U. S. 689, unless consideration is given to counsel's overall performance, before and at trial, it will be"all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."Ibid.In this case, however, we deal with a total failure to conduct pretrial discovery, and one as to which counsel offered only implausible explanations. Counsel's performance at trial, while generally creditable enough, suggests no better explanation for this apparent and pervasive failure to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 466 U. S. 691. Under these circumstances, although the failure of the District Court and the Court of Appeals to examine counsel's overall performance was inadvisable, we think this omission did not affect the soundness of the conclusion both courts reached -- that counsel's performance fell below the level of reasonable professional assistance in the respects alleged.Moreover, petitioners' analysis is flawed, however, by their use of hindsight to evaluate the relative importance of various components of the State's case. See id. at 466 U. S. 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, Page 477 U. S. 387 and to evaluate the conduct from counsel's perspective at the time"). At the time Morrison's lawyer decided not to request any discovery, he did not -- and, because he did not ask, could not -- know what the State's case would be. While the relative importance of witness credibility vis-a-vis the bedsheet and related expert testimony is pertinent to the determination whether respondent was prejudiced by his attorney's incompetence, it sheds no light on the reasonableness of counsel's decision not to request any discovery. We therefore agree with the District Court and the Court of Appeals that the assistance rendered respondent by his trial counsel was constitutionally deficient.B1Petitioners also argue that respondent suffered no prejudice from his attorney's failure to make a timely suppression motion, and that the Third Circuit erred in remanding the case to the District Court for a determination of prejudice under Strickland's standard. The essence of petitioners' argument is that, at a post-trial hearing on respondent's motion for bail pending appeal, the same judge who presided at respondent's trial made a finding of historical fact, which is entitled to a presumption of correctness under 28 U.S.C. § 2254(d). If that finding were presumed correct, petitioners contend that it would be dispositive of the prejudice issue -- that is, no court could find that there exists"a reasonable probability that, absent [Morrison's attorney's] errors, the factfinder would have had a reasonable doubt respecting guilt."Strickland, 466 U.S. at 466 U. S. 695. Thus, petitioners conclude, no ground for a remand exists.In New Jersey, bail after conviction is appropriate where a substantial issue for review exists and where the defendant poses no threat to the community. N.J.Ct. Rule 2:9-4. At Morrison's bail hearing, the public defender representing him informed the judge that, because he had not read the trial Page 477 U. S. 388 transcript and was not doing the appeal, he was not entirely sure on what grounds Morrison would appeal. Tr. of Motion for Bail Pending Appeal 7. He did, however, argue that the trial court had committed two legal errors that could present substantial issues for appellate review. Specifically, counsel contended that the court erred in refusing to entertain the midtrial motion to suppress the sheet, and that respondent may have been prejudiced by the court's awareness of another pending indictment.With respect to the court's decision to admit the sheet, Morrison's attorney presented what is most accurately characterized as an abuse-of-discretion argument. He suggested that, because trial counsel had been surprised by the introduction of the sheet, the court should have waived the pretrial filing requirement for suppression motions and should have permitted the midtrial motion. Id. at 5. The judge responded to this argument by noting:"The matter of the sheet and the tests that resulted therefrom obviously were important, they were not the most important phases of this case by any means.""Obviously, the most important phases of the case were direct testimony from the victim herself, as well as from testimony of witnesses, police, medical examinations, and testimony from the defense, testimony by the defendant. The sheet was just one small phase in this whole case. I do not think that it is such a substantial issue for review by the Appellate Division which would cause or be likely to cause a reversal."Id. at 11.Petitioners direct our attention to the court's statement that "[t]he sheet was just one small phase in this whole case." Ibid. While acknowledging this Court's explanation in Strickland that both the performance and the prejudice components of the ineffectiveness test are mixed questions of fact and law, and that therefore a state court's ultimate conclusions regarding competence and prejudice are not findings of fact binding on the federal court to the extent stated by Page 477 U. S. 389 § 2254(d), see Strickland, 466 U.S. at 466 U. S. 698, petitioners maintain that this statement constitutes a subsidiary finding of historical fact, entitled to § 2254(d)'s presumption of correctness. See ibid. Further, petitioners construe the judge's remark to be a finding that, even if the sheet had been excluded, he would have found respondent guilty. So construed and accorded the presumption of correctness, this finding of fact, they argue, prevents a federal court from determining that Morrison was prejudiced by his attorney's incompetence.We do not agree with petitioners that the statement made by the judge at respondent's bail hearing constitutes a finding of fact which is subject to § 2254(d) deference in this case. Section 2254(d)(1) provides that"a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . shall be presumed to be correct"unless "the merits of the factual dispute were not resolved in the State court hearing." [Footnote 9] The issue respondent places before the federal habeas courts is substantially different from the issue he presented to the judge in the bail hearing. The question before the federal courts is whether a reasonable probability exists that the trial judge would have had a reasonable doubt concerning respondent's guilt if the sheet and related testimony had been excluded. By contrast, the state court was called upon simply to decide whether the argument that the court had abused its discretion in refusing to entertain respondent's suppression motion midtrial raised a substantial issue for appeal on which Morrison was likely to succeed.Not only was the judge not asked to answer the question presently before the federal courts, he did not answer it. He stated only that, while the sheet was an important aspect of Page 477 U. S. 390 the case, it was not the most important aspect. We do not find his remark tantamount to a declaration that he would have found respondent guilty even if the sheet and related expert testimony had not been admitted. If, after saying what he did, the judge had been asked whether he would have had a reasonable doubt concerning Morrison's guilt had the sheet and related testimony been excluded, he could well have answered affirmatively without contradicting his earlier comment. Although the sheet may not have been as important as other components of the State's case, it may have tipped the balance. We simply do not know.Because it cannot fairly be said that the "merits of the factual dispute," § 2254(d)(1), regarding the existence of prejudice were resolved in the bail hearing, we conclude that the statements of the judge regarding the relative importance of the sheet are not findings of fact subject to § 2254(d) deference. [Footnote 10]2Respondent also criticizes the Court of Appeals' decision to remand for redetermination of prejudice. He argues that the record is sufficiently complete to enable this Court to apply Strickland's prejudice prong directly to the facts of his case, and urges that we do so.We decline respondent's invitation. While the existing record proved adequate for our application of Strickland's competency standard, it is incomplete with respect to prejudice. No evidentiary hearing has ever been held on the merits of respondent's Fourth Amendment claim. Because the State has not conceded the illegality of the search and seizure, Tr. of Oral Arg. 11-12, it is entitled to an opportunity to establish that Officer Most's search came within one of the exceptions we have recognized to the Fourth Amendment's Page 477 U. S. 391 prohibition against warrantless searches. Even if not, respondent may be unable to show that, absent the evidence concerning the bedsheet, there is a reasonable probability that the trial judge would have had a reasonable doubt as to his guilt. If respondent could not make this showing, a matter on which we express no view, there would, of course, be no need to hold an evidentiary hearing on his Fourth Amendment claim.The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtKimmelman v. Morrison, 477 U.S. 365 (1986)Kimmelman v. MorrisonNo. 84-1661Argued March 5, 1986Decided June 26, 1986477 U.S. 365SyllabusAt respondent's bench trial in a New Jersey court resulting in his conviction of rape, a police officer testified that, a few hours after the rape, she accompanied the victim to respondent's apartment where the rape had occurred; that he was not there, but another tenant let them into respondent's apartment; and that the officer seized a sheet from respondent's bed. At such point in the testimony, respondent's counsel sought to suppress introduction of the sheet and any testimony about it on the ground that the officer had seized it without a search warrant in violation of the Fourth Amendment, but the judge ruled that counsel's suppression motion was late under the applicable New Jersey Court Rule. The judge rejected counsel's attempt to justify his omission on the grounds that he had not heard of the seizure until the day before, when the trial began; that it was the State's obligation to inform him of its case, even though he made no pretrial request for discovery, which would have revealed the search and seizure; and that he had not expected to go to trial because he had been told that the victim did not wish to proceed. Respondent retained new counsel after the trial and, on appeal, alleged ineffective assistance of counsel at the trial and error in the trial court's refusal to entertain the suppression motion during the trial. The appellate court rejected the claims and affirmed respondent's conviction. Thereafter, respondent unsuccessfully sought postconviction relief from the trial judge on the same grounds. He then obtained habeas corpus relief in Federal District Court, which held, inter alia, that he had established his ineffective assistance claim. The Court of Appeals concluded that Stone v. Powell, 428 U. S. 465 -- which held that federal courts should withhold habeas review where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim -- should not be extended to bar federal habeas consideration of Sixth Amendment claims based on counsel's alleged failure competently to litigate Fourth Amendment claims. Reviewing the District Court's determination of ineffective assistance under the test established by the intervening decision in Strickland v. Washington, 466 U. S. 668 -- which held that, to establish ineffective assistance, the defendant must prove both incompetence of counsel and prejudice -- the Court of Appeals determined that Page 477 U. S. 366 respondent's trial counsel had been "grossly ineffective," but vacated and remanded for the District Court to consider whether, under the standards set forth in Strickland, respondent had been prejudiced by his attorney's incompetence.Held:1. The restriction on federal habeas review of Fourth Amendment claims announced in Stone v. Powell, supra, does not extend to Sixth Amendment ineffective assistance of counsel claims which are founded primarily on incompetent representation with respect to a Fourth Amendment issue. Federal courts may grant habeas relief in appropriate cases, regardless of the nature of the underlying attorney error. Pp. 477 U. S. 373-383.(a) Respondent's Sixth Amendment claim is not in fact a Fourth Amendment claim directly controlled by Stone, as petitioners assert. The two claims are distinct, both in nature and in the requisite elements of proof. Pp. 477 U. S. 374-375.(b) Nor are the rationale and purposes of Stone fully applicable to a Sixth Amendment claim that is based principally on defense counsel's failure to litigate a Fourth Amendment claim competently. Stone held that the remedy for Fourth Amendment violations provided by the exclusionary rule is not a personal constitutional right, but instead is predominately a judicially created structural remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect; the rule has minimal utility in the context of federal collateral proceedings. Here, respondent sought direct federal habeas protection of his fundamental personal right to effective assistance of counsel, and collateral review is frequently the only means through which an accused can effectuate that right. Moreover, there is no merit to the contention that a defendant should not be allowed to vindicate through federal habeas review his right to effective assistance of counsel where counsel's primary error is failure to make a timely request for the exclusion of illegally seized evidence that is often the most probative information bearing on the defendant's guilt or innocence. The right to counsel is not conditioned upon actual innocence. Pp. 477 U. S. 375-380.(c) Petitioners' prediction that every Fourth Amendment claim that fails in state court will be fully litigated in federal habeas proceedings in Sixth Amendment guise, and that, as a result, many state court judgments will be disturbed, is incorrect, because it ignores the rigorous standard which Strickland v. Washington, supra, erects for ineffective assistance claims. Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim like respondent's, a good Fourth Amendment claim alone will not earn a prisoner federal habeas relief. Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence Page 477 U. S. 367 of their attorneys are entitled to the writ and to retrial without the challenged evidence. Pp. 477 U. S. 380-382.2. Respondent satisfied the incompetence prong of the test for ineffective assistance of counsel set forth in Strickland, and the Court of Appeals did not err in remanding the case to the District Court for a determination of prejudice under Strickland's standard. Pp. 477 U. S. 383-391.(a) While the failure to file a suppression motion does not constitute per se ineffective assistance of counsel, the record clearly reveals that respondent's attorney failed to file a timely suppression motion, not due to trial strategy considerations, but because he was unaware of the search, and of the State's intention to introduce the bedsheet into evidence, due to his failure to conduct any pretrial discovery. Such failure here was not, as required under Strickland, reasonable and in accord with prevailing professional norms. Pp. 477 U. S. 383-387.(b) With respect to the prejudice prong of the Strickland test, there is no merit to petitioners' contention that a statement made by the trial judge at a post-trial hearing on respondent's motion for bail pending appeal constituted a finding that, even if the bedsheet had been excluded, he would have found respondent guilty, and that such finding was a subsidiary finding of historical fact that respondent was not prejudiced by his attorney's incompetence, entitled under 28 U.S.C. § 2254(d) to a presumption of correctness in federal habeas proceedings. The record here is not sufficiently complete to enable this Court to apply Strickland's prejudice prong directly to the facts of the case, and the remand to the District Court for redetermination of prejudice was proper. Pp. 477 U. S. 387-391.752 F.2d 918, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 477 U. S. 391. Page 477 U. S. 368

1961_241

MR. JUSTICE CLARK delivered the opinion of the Court.This is a treble damage suit brought under § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, charging petitioners, Sunkist Growers, Incorporated, and The Exchange Orange Products Company, with conspiracy to restrain and monopolize interstate trade and commerce in citrus fruits and by-products and with actual monopolization thereof in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U.S.C. §§ 1, 2, as amended. The petitioners are each agricultural cooperative organizations, Exchange Orange being a wholly owned subsidiary of Sunkist. Petitioners contend the case was submitted under instructions permitting the jury to find an illegal conspiracy among them and Exchange Lemon Products Company, a cooperative processing association owned and operated exclusively by a number of lemon grower associations all of which are members of Sunkist Growers, Inc. They say that, under the exemptions from the antitrust laws granted agricultural associations by § 6 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 17, and § 1 of the Capper-Volstead Act, 42 Stat. 388, 7 U.S.C. § 291, Sunkist, Exchange Orange, and Exchange Lemon, being made up of the same growers and associations, cannot be charged with conspiracy among themselves. The trial court overruled this contention, among others, and the jury returned a verdict of $500,000. Judgment for treble this amount and attorney fees, less some minor offsets, was entered. The Court of Appeals, accepting petitioners' view of the instructions, held that the exemption claimed did not apply here and affirmed the judgment as to liability, but Page 370 U. S. 21 reversed as to the amount of damages. 284 F.2d 1. We granted certiorari limited to the issue of the immunity of inter-organizational dealings among the three cooperatives from the conspiracy provisions of the antitrust laws. 368 U. S. 813. We have concluded that the case was submitted to the jury on the theory claimed by petitioners, and that this was erroneous. Thus, we reverse the judgment.Sunkist Growers, Inc., has at its base 12,000 growers of citrus fruits in California and Arizona. These growers are organized into local associations which operate packing houses. The associations, in turn, are grouped into district exchanges, and representatives from these exchanges make up the governing board of Sunkist, a nonstock membership corporation. Sunkist serves the members as an organization for marketing their fresh fruit and fruit products [Footnote 1] through its field, advertising, sales, and traffic departments. All of its net revenues are distributed to the members.In 1915, several member associations of Sunkist undertook to develop by-products for lemons in order to create a market for produce not salable as fresh fruit. Because this was a new, untried field, the entire cooperative did not participate. Rather, a separate cooperative -- Exchange Lemon, a nonprofit stock corporation -- was formed for this venture by the interested associations. Since that time, Exchange Lemon has retained its separate identity, although it is made up exclusively of lemon grower associations which are also members of Sunkist. Its function now is primarily one of processing, and the resultant products are marketed for the owners by Sunkist through its products department, which is jointly managed by directors of Exchange Lemon and Exchange Orange. Page 370 U. S. 22One year after the organization of Exchange Lemon, a similar association was formed to develop by-products for oranges. This organization, Exchange Orange, was comprised of a number of Sunkist member associations until 1931. At that time, the Sunkist directors decided to make the processing facilities of Exchange Orange available to all of its member associations by purchasing it and operating it as a wholly owned subsidiary.In sum, the individual growers involved each belong to a local grower association. Fruit which is to be sold fresh is packed by the associations and marketed by Sunkist, a nonstock membership corporation comprised of district exchanges to which the associations belong. Most fruit which is to be processed into by-products is handled by Exchange Orange, a subsidiary of Sunkist, or by Exchange Lemon, a separate organization comprised of a number of Sunkist member associations. [Footnote 2] It is then marketed by the products department of Sunkist, which is managed by directors of Exchange Orange and Exchange Lemon.Competing with the three cooperatives in the California-Arizona area in the business of processing and selling canned orange juice were four independent processors, which were primarily dependent upon Sunkist for their supply of by-product oranges. [Footnote 3] In 1951, two of these concerns, TreeSweet Products Company and E. A. Silzle Corporation, had "process and purchase" contracts with Exchange Orange. Under its contract, TreeSweet agreed to process at cost an undetermined amount of oranges provided by Exchange Orange and to purchase the resultant orange juice at the then current price of Sunkist. The average net price for the oranges under this contract was Page 370 U. S. 23 alleged to have been $25.10 per ton. [Footnote 4] The contract with Silzle provided that it would process a stated amount of oranges for Exchange Orange and purchase the juice at a stated price less its processing cost alleged to have netted $17.66 per ton. [Footnote 5] The third producer, Case-Swayne Company, allegedly declined Sunkist's offer of a similar contract. Respondent Winckler & Smith Citrus Products Company, the final processor, was offered oranges only at the list price of $40 to $44 per ton, depending upon content of soluble solids, and was refused the "process and purchase" arrangements described above.Respondents brought this suit on the theory that Sunkist and Exchange Orange controlled the supply of by-product oranges available in the California-Arizona area to independent processors; that they combined and conspired with Exchange Lemon, TreeSweet, and Silzle to restrain and to monopolize interstate trade and commerce in 1951 in the processing and sale of citrus fruit juices, particularly canned orange juice; that they in fact monopolized such trade and commerce; and that the purpose or effect thereof was the elimination of Winckler as a competitor in the sale of such juices. Respondents relied on six specific acts and contracts which allegedly furthered the conspiracy, namely: (1) the processing of oranges at cost by Exchange Lemon for Exchange Orange during 1951; (2) the processing of lemons at cost by Exchange Orange for Exchange Lemon during 1951; (3) the establishment by Sunkist and Exchange Orange of a price to independent processors alleged to be too high to enable purchasers to compete, i.e., the $40-$44 per ton list price; (4) the contract between Exchange Orange and TreeSweet in 1951; (5) the contract between Exchange Page 370 U. S. 24 Orange and Silzle in 1951; (6) the refusal to sign a comparable contract with respondent Winckler.After a lengthy trial producing a 4,000-page transcript, the case went to the jury under a necessarily complicated charge. As to the parties the jury might find to have participated in an illegal conspiracy, the court gave several instructions. One, given early in the charge, was that:"a parent corporation and its wholly owned subsidiary can be guilty of combining or conspiring together to violate the antitrust laws. The defendants Sunkist Growers, Inc., and its wholly-owned subsidiary Exchange Orange Products Company, can accordingly combine or conspire together or with others to violate Sections 1 and 2 of the Sherman Act as charged in the first and second causes of action, subject to other instructions concerning the Capper-Volstead Act, and Section 6 of the Clayton Act, and the exemptions contained therein."The instructions on the Clayton and Capper-Volstead Acts merely stated that the cooperatives could lawfully have a monopoly of the fruit and products in which they dealt. Later references to the alleged conspiracy often mentioned only petitioners and the two independent processors, e.g.,"If you find that either or both of the defendants [Sunkist and Exchange Orange, petitioners here] combined with TreeSweet or Silzle to eliminate the competition of the plaintiff. . . ."However, the court's concluding instructions on the subject could well have been taken by the jury as permitting them to find an illegal conspiracy solely among the three cooperatives:"Unless you find, therefore, from the preponderance of the evidence, that Sunkist or Exchange Orange or either of them, combined or conspired with either TreeSweet, or Silzle, or ELP [Exchange Lemon Products], Page 370 U. S. 25 and in 1951 did one or more of the specific acts charged. . . ."". . . Unless you find from the preponderance of the evidence that defendants Sunkist and Exchange Orange, or either of them, and one or more of the alleged co-conspirators [one of which was Exchange Lemon], combined and conspired, and pursuant to such combination or conspiracy. . . .""Those are summary instructions which sort of sum up what is charged and what the plaintiff must prove."And, in a final addendum after consultation with counsel, the court instructed that:"I also am told that I spoke about how the defendants had conspired on one occasion. The charge is not that the defendants conspired. The charge is that the defendants and co-conspirators conspired.""However, as a matter of fact, you may find that nobody conspired, or you may pick out and decide that some number less than the total conspired."On the question now before us, the Court of Appeals held that any objection to at least one of the conspiracy instructions was waived; that, in any event, different agricultural cooperatives combining together are not entitled to claim a total immunity for acts which they might do unilaterally and individually; and that the common ownership of Sunkist, Exchange Orange, and Exchange Lemon did not prevent the finding of an illegal conspiracy among them.We believe the instructions quite plainly left it open for the jury to base their verdict upon a finding of a conspiracy among petitioners and Exchange Lemon. [Footnote 6] At the outset, Page 370 U. S. 26 the court instructed that a conspiracy could be found between Sunkist and its wholly owned subsidiary Exchange Orange. Thereafter, the charge advised the jury that a finding of conspiracy between "Sunkist or Exchange Orange or either of them . . . [and] either TreeSweet, or Silzle, or ELP" was sufficient basis for a judgment against petitioners. From this, it is entirely probable that the jury's verdict against both petitioners was based on their finding of a conspiracy among Sunkist, Exchange Orange, and Exchange Lemon. There is no question that Exchange Lemon was identified in the complaint and throughout the trial as an alleged co-conspirator. In no fewer than five instances did the trial court refer to the alleged conspiracy as being among petitioners and the "co-conspirators" or petitioners and Exchange Lemon, TreeSweet, or Silzle. The final summarization on conspiracy was in terms of finding that petitioners combined or conspired with either TreeSweet or Silzle or Exchange Lemon, and the addendum instructions emphasized that the jury could find either or both petitioners had illegally conspired with any one of the alleged co-conspirators. It is true that, in some instances, the court's conspiracy instructions mentioned only TreeSweet and Silzle as co-conspirators. Conjecture as to the reasons for this would not be fruitful. For it is clear that the court never limited the jury to a consideration of those parties as the sole co-conspirators. And other instructions, including the summarization, allowed the jury to base their verdict upon a finding of an illegal conspiracy solely among Sunkist, Exchange Orange, and Exchange Lemon.It is suggested by respondents and the court below that petitioners waived their objection to these instructions. This is based on petitioners' acquiescence in the additional instructions, including references to the conspiracy, given the jury after the general charge. But petitioners' actions Page 370 U. S. 27 here must be viewed in context. Prior to the general charge, conferences of counsel and the trial court were held to discuss the instructions. At each point, counsel for petitioners objected to instructions which suggested that the three cooperatives might be found to have illegally conspired among themselves, and requested instructions that would have limited a finding of an unlawful conspiracy in this case to one among petitioners and TreeSweet or Silzle. The trial court consistently ruled adversely to petitioners on this point. After the charge was delivered, counsel were told that all prior objections would be preserved, and asked if they had any additional objections. In light of this assurance and petitioners' prior objections and requests, we believe the acquiescence in the added instructions could not be considered a waiver.We are squarely presented, then, with the question of whether Sunkist, Exchange Orange, and Exchange Lemon -- the three legal entities formed by these 12,000 growers -- can be considered independent parties for the purposes of the conspiracy provisions of §§ 1 and 2 of the Sherman Act. We conclude not. Section 6 of the Clayton Act provides, inter alia, that agricultural organizations instituted for the purposes of mutual help shall not be held or construed to be illegal combinations or conspiracies in restraint of trade under the antitrust laws. [Footnote 7] Page 370 U. S. 28 The Capper-Volstead Act sets out this immunity in greater specificity:"That persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes. . . . [Footnote 8]"There can be no doubt that, under these statutes, the 12,000 California-Arizona citrus growers ultimately involved could join together into one organization for the collective processing and marketing of their fruit and fruit products without the business decisions of their officers being held combinations or conspiracies. The language of the Capper-Volstead Act is specific in permitting concerted efforts by farmers in the processing, preparing for market, and marketing of their products. And the legislative history of the Act reveals several references to the Sunkist organization -- then called the California Fruit Growers Exchange and numbering 11,000 members -- including a suggestion by Senator Capper that this was the type of cooperative that would find "definite legalization" under the legislation. [Footnote 9] Although we cannot draw from these references a knowing approval of the Page 370 U. S. 29 tripartite legal organization of the 11,000 growers, they do indicate that a cooperative of such size and general activities was contemplated by the Act.Instead of a single cooperative, these growers, through local associations, first formed one area-wide organization (Sunkist) for marketing purposes. When it was decided to perform research and processing on a joint basis, separate organizations were formed by the interested associations for reasons outlined above. At a later date, one of these (Exchange Orange) was acquired by the Sunkist organization, and is presently held as a subsidiary. The other (Exchange Lemon) is still owned by the lemon grower associations, all of whom are also member associations of Sunkist. With due respect to the contrary opinions of the Court of Appeals and District Court, we feel that the 12,000 growers here involved are, in practical effect and in the contemplation of the statutes, one "organization" or "association," even though they have formally organized themselves into three separate legal entities. To hold otherwise would be to impose grave legal consequences upon organizational distinctions that are of de minimis meaning and effect to these growers who have banded together for processing and marketing purposes within the purview of the Clayton and Capper-Volstead Acts. There is no indication that the use of separate corporations had economic significance in itself, or that outsiders considered and dealt with the three entities as independent organizations. That the packing is done by local associations, the advertising, sales, and traffic by divisions of the area association, and the processing by separate organizations does not, in our opinion, preclude these growers from being considered one organization or association for purposes of the Clayton and Capper-Volstead Acts.Since we hold erroneous one theory of liability upon which the general verdict may have rested -- a conspiracy Page 370 U. S. 30 among petitioners and Exchange Lemon -- it is unnecessary for us to explore the legality of the other theories. As was stated of a general verdict in Maryland v. Baldwin, 112 U. S. 490, 112 U. S. 493 (1884),"[I]ts generality prevents us from perceiving upon which plea they found. If, therefore, upon any one issue error was committed, either in the admission of evidence or in the charge of the court, the verdict cannot be upheld. . . ."Suffice it to say that our decision in no way detracts from earlier cases holding agricultural cooperatives liable for conspiracies with outside groups, United States v. Borden Co., 308 U. S. 188 (1939), and for monopolization, Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458 (1960).Reversed

U.S. Supreme CourtSunkist Growers, Inc. v. Winckler & Smith, 370 U.S. 19 (1962)Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co.No. 241Argued March 21-22, 1962Decided May 28, 1962370 U.S. 19SyllabusA group of citrus fruit growers in California and Arizona organized local cooperative associations which joined together for the purpose of collectively marketing their fruit through the agency of an area-wide marketing cooperative and two processing cooperatives. Respondents sued petitioners, the area-wide cooperative and one of the processing cooperatives, for treble damages under § 4 of the Clayton Act, claiming that they had conspired with the other processing cooperative and two privately owned processing corporations to restrain and monopolize interstate trade in citrus fruit and by-products, and had actually monopolized the same, in violation of §§ 1 and 2 of the Sherman Act.Held: In view of the exemption from the antitrust laws accorded to agricultural cooperatives by § 6 of the Clayton Act and §1 of the Capper-Volstead Act, 7 U.S.C. § 291, a judgment based on a general verdict against petitioners, which may have rested on a finding of an unlawful conspiracy among the three cooperatives, must be reversed. Pp. 370 U. S. 20-30.(a) The instructions in this case left it open for the jury to base its verdict on a finding of a conspiracy among the marketing cooperative and the two processing cooperatives. Pp. 370 U. S. 25-26.(b) On the record in this case, it cannot be said that petitioners waived their objection to these instructions. Pp. 370 U. S. 26-27.(c) In view of the provisions of § 6 of the Clayton Act and § 1 of the Capper-Volstead Act, the three legal entities formed by these growers for the purpose of processing and marketing their agricultural products cooperatively cannot be considered independent parties for the purposes of the conspiracy provisions of §§ 1 and 2 of the Sherman Act. Pp. 370 U. S. 27-29.(d) Where one of several theories submitted to a jury is held erroneous, a general verdict must be reversed, as it may have rested on the erroneous theory. Pp. 370 U. S. 29-30.284 F.2d 1 reversed and cause remanded. Page 370 U. S. 20

1989_88-1198

Justice STEVENS delivered the opinion of the Court.Pursuant to a well-publicized plan, a group of lawyers agreed not to represent indigent criminal defendants in the District of Columbia Superior Court until the District of Columbia government increased the lawyers' compensation. The questions presented are whether the lawyers' concerted conduct violated § 5 of the Federal Trade Commission Act and if so, whether it was nevertheless protected by the First Amendment to the Constitution. [Footnote 1]IThe burden of providing competent counsel to indigent defendants in the District of Columbia is substantial. During 1982, court-appointed counsel represented the defendant in approximately 25,000 cases. In the most serious felony cases, representation was generally provided by full-time employees of the District's Public Defender System (PDS). Less serious felony and misdemeanor cases constituted about Page 493 U. S. 415 85 percent of the total caseload. In these cases, lawyers in private practice were appointed and compensated pursuant to the District of Columbia Criminal Justice Act (CJA). [Footnote 2]Although over 1,200 lawyers have registered for CJA appointments, relatively few actually apply for such work on a regular basis. In 1982, most appointments went to approximately 100 lawyers who are described as "CJA regulars." These lawyers derive almost all of their income from representing indigents. [Footnote 3] In 1982, the total fees paid to CJA lawyers amounted to $4,579,572.In 1974, the District created a Joint Committee on Judicial Administration with authority to establish rates of compensation for CJA lawyers not exceeding the rates established by the federal Criminal Justice Act of 1964. After 1970, the federal Act provided for fees of $30 per hour for court time and $20 per hour for out-of-court time. See 84 Stat. 916, codified at 18 U.S.C. § 3006A (1970 ed.). These rates accordingly capped the rates payable to the District's CJA lawyers, and could not be exceeded absent amendment to either the federal statute or the District Code.Bar organizations began as early as 1975 to express concern about the low fees paid to CJA lawyers. Beginning in 1982, respondents, the Superior Court. Trial Lawyers Association (SCTLA) and its officers, and other bar groups sought to persuade the District to increase CJA rates to at least $35 per hour. Despite what appeared to be uniform support for the bill, it did not pass. It is also true, however, that nothing Page 493 U. S. 416 in the record indicates that the low fees caused any actual shortage of CJA lawyers or denied effective representation to defendants.In early August, 1983, in a meeting with officers of SCTLA, the mayor expressed his sympathy but firmly indicated that no money was available to fund an increase. The events giving rise to this litigation then ensued.At an SCTLA meeting, the CJA lawyers voted to form a "strike committee." The eight members of that committee promptly met and informally agreed"that the only viable way of getting an increase in fees was to stop signing up to take new CJA appointments, and that the boycott should aim for a $45 out-of-court and $55 in-court rate schedule."In re Superior Court Trial Lawyers Assn., 107 F.T.C. 510, 538 (1986).On August 11, 1983, about 100 CJA lawyers met and resolved not to accept any new cases after September 6 if legislation providing for an increase in their fees had not passed by that date. Immediately following the meeting, they prepared (and most of them signed) a petition stating:"We, the undersigned private criminal lawyers practicing in the Superior court of the District of Columbia, agree that unless we are granted a substantial increase in our hourly rate we will cease accepting new appointments under the Criminal Justice Act."272 U.S.App.D.C. 272, 276, 856 F.2d 226, 230 (1988).On September 6, 1983, about 90 percent [Footnote 4] of the CJA regulars refused to accept any new assignments. Thereafter, SCTLA arranged a series of events to attract the attention of the news media and to obtain additional support. These events were well publicized and did engender favorable editorial comment, but the trial examiner found that"there is no credible evidence that the District's Page 493 U. S. 417 eventual capitulation to the demands of the CJA lawyers was made in response to public pressure, or, for that matter, that this publicity campaign actually engendered any significant measure of public pressure."107 F.T.C. at 543. [Footnote 5]As the participating CJA lawyers had anticipated, their refusal to take new assignments had a severe impact on the District's criminal justice system. The massive flow of new cases did not abate, [Footnote 6] and the need for prompt investigation and preparation did not ease. As the trial examiner found,"there was no one to replace the CJA regulars, and makeshift measures were totally inadequate. A few days after the September 6 deadline, PDS was swamped with cases. The handful of CJA regulars who continued to take cases were soon overloaded. The overall response of the uptown lawyers to the PDS call for help was feeble, reflecting their universal distaste for criminal law, their special aversion for compelled indigency representation, the near epidemic siege of self-doubt about their ability to handle cases in this field, and their underlying support for the demands of the CJA lawyers. Most of the law student volunteers initially observed the boycott, and later all law student volunteers were limited (as they usually are) to a relatively few minor misdemeanors."107 F.T.C. at 544. (Footnotes omitted). Page 493 U. S. 418Within 10 days, the key figures in the District's criminal justice system "became convinced that the system was on the brink of collapse because of the refusal of CJA lawyers to take on new cases." Id. at 544. On September 15, they hand-delivered a letter to the mayor describing why the situation was expected to "reach a crisis point" by early next week and urging the immediate enactment of a bill increasing all CJA rates to $35 per hour. The mayor promptly met with members of the strike committee and offered to support an immediate temporary increase to the $35 level as well as a subsequent permanent increase to $45 an hour for out-of-court time and $55 for in-court time.At noon on September 19, 1983, over 100 CJA lawyers attended a SCTLA meeting and voted to accept the $35 offer and end the boycott. The city council's Judiciary Committee convened at 2:00 p.m. that afternoon. The committee recommended legislation increasing CJA fees to $35, and the council unanimously passed the bill on September 20th. On September 21st, the CJA regulars began to accept new assignments, and the crisis subsided.IIThe Federal Trade Commission (FTC) filed a complaint against SCTLA and four of its officers (respondents) alleging that they had"entered into an agreement among themselves and with other lawyers to restrain trade by refusing to compete for or accept new appointments under the CJA program beginning on September 6, 1983, unless and until the District of Columbia increased the fees offered under the CJA program."Id. at 511. The complaint alleged that virtually all of the attorneys who regularly compete for or accept new appointments under the CJA program had joined the agreement. The FTC characterized respondents' conduct as "a conspiracy to fix prices and to conduct a boycott" and concluded that they were engaged in "unfair methods of competition Page 493 U. S. 419 in violation of § 5 of the FTC Act." [Footnote 7]After a 3-week hearing, the Administrative Law Judge (ALJ) found that the facts alleged in the complaint had been proven, and rejected each of the respondents' three legal defenses -- that the boycott was adequately justified by the public interest in obtaining better legal representation for indigent defendants; that, as a method of petitioning for legislative change, it was exempt from the antitrust laws under our decision in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961); and that it was a form of political action protected by the First Amendment under our decision in NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982). The ALJ nevertheless concluded that the complaint should be dismissed because the District officials, who presumably represented the victim of the boycott, recognized that its net effect was beneficial. The increase in fees would attract more CJA lawyers, enabling them to reduce their caseloads and provide better representation for their clients. "I see no point," he concluded, "in striving resolutely for an antitrust triumph in this sensitive area when the particular case can be disposed of on a more pragmatic basis -- there was no harm done." 107 F.T.C. at 561.The ALJ's pragmatic moderation found no favor with the FTC. Like the ALJ, the FTC rejected each of respondents' defenses. It held that their "coercive, concerted refusal to deal" had the "purpose and effect of raising prices" and was illegal per se. Id. at 573. Unlike the ALJ, the FTC refused to conclude that the boycott was harmless, noting that the"boycott forced the city government to increase the CJA fees from a level that had been sufficient to obtain an adequate supply of CJA lawyers to a level satisfactory to the respondents. Page 493 U. S. 420 The city must, as a result of the boycott, spend an additional $4 million to $5 million a year to obtain legal services for indigents. We find that these are substantial anticompetitive effects resulting from the respondents' conduct."Id. at 577. Finally, the FTC determined that the record did not support the ALJ's conclusion that the District supported the boycott. The FTC also held that such support would not in any event excuse respondents' antitrust violations. Accordingly, it entered a cease-and-desist order"to prohibit the respondents from initiating another boycott . . . whenever they become dissatisfied with the results or pace of the city's legislative process."Id. at 602.The Court of Appeals vacated the FTC order and remanded for a determination whether respondents possessed "significant market power." The court began its analysis by recognizing that, absent any special First Amendment protection, the boycott "constituted a classic restraint of trade within the meaning of Section 1 of the Sherman Act." [Footnote 8] 8 272 U.S.App.D.C. at 280, 856 F.2d at 234. The Court of Appeals was not persuaded by respondents' reliance on Claiborne Hardware or Noerr, or by their argument that the boycott was justified because it was designed to improve the quality of representation for indigent defendants. It concluded, however, that "the SCTLA boycott did contain an element of expression warranting First Amendment protection." 272 U.S.App. D.C. at 294, 856 F.2d at 248. It Page 493 U. S. 421 noted that boycotts have historically been used as a dramatic means of expression and that respondents intended to convey a political message to the public at large. It therefore concluded that, under United States v. O'Brien, 391 U. S. 367 (1968), a restriction on this form of expression could not be justified unless it is no greater than is essential to an important governmental interest. This test, the Court reasoned, could not be satisfied by the application of an otherwise appropriate per se rule, but instead required the enforcement agency to "prove rather than presume that the evil against which the Sherman Act is directed looms in the conduct it condemns." 272 U.S.App.D.C. at 296, 856 F.2d at 250.Because of our concern about the implications of the Court of Appeals' unique holding, we granted the FTC's petition for certiorari as well as respondents' cross-petition. 490 U.S. 1019 (1989).We consider first the cross-petition, which contends that respondents' boycott is outside the scope of the Sherman Act or is immunized from antitrust regulation by the First Amendment. We then turn to the FTC's petition.IIIReasonable lawyers may differ about the wisdom of this enforcement proceeding. The dissent from the decision to file the complaint so demonstrates. So, too, do the creative conclusions of the ALJ and the Court of Appeals. Respondents' boycott may well have served a cause that was worthwhile and unpopular. We may assume that the pre-boycott rates were unreasonably low, and that the increase has produced better legal representation for indigent defendants. Moreover, given that neither indigent criminal defendants nor the lawyers who represent them command any special appeal with the electorate, we may also assume that, without the boycott, there would have been no increase in District CJA fees at least until the Congress amended the federal statute. These assumptions do not control the case, for it is Page 493 U. S. 422 not our task to pass upon the social utility or political wisdom of price-fixing agreements.As the ALJ, the FTC, and the Court of Appeals all agreed, respondents' boycott "constituted a classic restraint of trade within the meaning of Section 1 of the Sherman Act." 272 U.S.App.D.C. at 280, 856 F.2d at 234. As such, it also violated the prohibition against unfair methods of competition in § 5 of the FTC Act. See FTC v. Cement Institute, 333 U. S. 683, 333 U. S. 694 (1948). Prior to the boycott, CJA lawyers were in competition with one another, each deciding independently whether and how often to offer to provide services to the District at CJA rates. [Footnote 9] The agreement among the Page 493 U. S. 423 CJA lawyers was designed to obtain higher prices for their services and was implemented by a concerted refusal to serve an important customer in the market for legal services and, indeed, the only customer in the market for the particular services that CJA regulars offered."This constriction of supply is the essence of 'price-fixing,' whether it be accomplished by agreeing upon a price, which will decrease the quantity demanded, or by agreeing upon an output, which will increase the price offered."272 U.S.App.D.C. at 280, 856 F.2d at 234. The horizontal arrangement among these competitors was unquestionably a "naked restraint" on price and output. See National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85, 468 U. S. 110 (1984).It is of course true that the city purchases respondents' services because it has a constitutional duty to provide representation to indigent defendants. It is likewise true that the quality of representation may improve when rates are increased. Yet neither of these facts is an acceptable justification for an otherwise unlawful restraint of trade. As we have remarked before, the"Sherman Act reflects a legislative judgment that ultimately competition will produce not only lower prices, but also better goods and services."National Soc. of Professional Engineers v. United States, 435 U. S. 679, 435 U. S. 695 (1978). This judgment"recognizes that all elements of a bargain -- quality, service, safety, and durability -- and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers. Page 493 U. S. 424 Ibid. That is equally so when the quality of legal advocacy, rather than engineering design, is at issue."The social justifications proffered for respondents' restraint of trade thus do not make it any less unlawful. The statutory policy underlying the Sherman Act "precludes inquiry into the question whether competition is good or bad." Ibid. Respondents' argument, like that made by the petitioners in Professional Engineers, ultimately asks us to find that their boycott is permissible because the price it seeks to set is reasonable. But it was settled shortly after the Sherman Act was passed that it"is no excuse that the prices fixed are themselves reasonable. See, e.g., United States v. Trenton Potteries Co., 273 U. S. 392, 273 U. S. 397-398 (1927); United States v. Trans-Missouri Freight Assn., 166 U. S. 290, 166 U. S. 340-341 (1897)."Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643, 446 U. S. 647 (1980). Respondents' agreement is not outside the coverage of the Sherman Act simply because its objective was the enactment of favorable legislation.Our decision in Noerr in no way detracts from this conclusion. In Noerr, we "considered whether the Sherman Act prohibited a publicity campaign waged by railroads" and"designed to foster the adoption of laws destructive of the trucking business, to create an atmosphere of distaste for truckers among the general public, and to impair the relationships existing between truckers and their customers."Claiborne Hardware, 458 U.S. at 458 U. S. 913. Interpreting the Sherman Act in the light of the First Amendment's Petition Clause, the Court noted that"at least insofar as the railroads' campaign was directed toward obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had."365 U.S. at 365 U. S. 139-140.It of course remains true that "no violation of the Act can be predicated upon mere attempts to influence the passage or enforcement of laws," id. at 365 U. S. 135, even if the defendants' sole purpose is to impose a restraint upon the trade of their competitors, id. at 365 U. S. 138-140. But in the Noerr case, the alleged Page 493 U. S. 425 restraint of trade was the intended consequence of public action; in this case the boycott was the means by which respondents sought to obtain favorable legislation. The restraint of trade that was implemented while the boycott lasted would have had precisely the same anticompetitive consequences during that period even if no legislation had been enacted. In Noerr, the desired legislation would have created the restraint on the truckers' competition; in this case, the emergency legislative response to the boycott put an end to the restraint.Indeed, respondents' theory of Noerr was largely disposed of by our opinion in Allied Tube & Conduit Corp. v. Indian Head Inc., 486 U. S. 492 (1988). We held that the Noerr doctrine does not extend to "every concerted effort that is genuinely intended to influence governmental action." 486 U.S. at 486 U. S. 503. We explained:"If all such conduct were immunized, then, for example, competitors would be free to enter into horizontal price agreements as long as they wished to propose that price as an appropriate level for governmental ratemaking or price supports. But see Georgia v. Pennsylvania R. Co. 324 U. S. 439, 324 U. S. 456-463 (1945). Horizontal conspiracies or boycotts designed to exact higher prices or other economic advantages from the government would be immunized on the ground that they are genuinely intended to influence the government to agree to the conspirators' terms. But see Georgia v. Evans, 316 U. S. 159 (1942). Firms could claim immunity for boycotts or horizontal output restrictions on the ground that they are intended to dramatize the plight of their industry and spur legislative action."Ibid.IVThe lawyers' association argues that, if its conduct would otherwise be prohibited by the Sherman Act and the Federal Trade Act, it is nonetheless protected by the First.Amendment rights recognized in NAACP v. Claiborne Hardware, Page 493 U. S. 426 458 U. S. 886 (1982). That case arose after black citizens boycotted white merchants in Claiborne County, Miss. The white merchants sued under state law to recover losses from the boycott. We found that the"right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself."Id. at 458 U. S. 914. We accordingly held that "the nonviolent elements of petitioners' activities are entitled to the protection of the First Amendment." Id. at 458 U. S. 915.The lawyers' association contends that because it, like the boycotters in Claiborne Hardware, sought to vindicate constitutional rights, it should enjoy a similar First Amendment protection. It is, of course, clear that the association's efforts to publicize the boycott, to explain the merits of its cause, and to lobby District officials to enact favorable legislation -- like similar activities in Claiborne Hardware -- were activities that were fully protected by the First Amendment. But nothing in the FTC's order would curtail such activities, and nothing in the FTC's reasoning condemned any of those activities.The activity that the FTC order prohibits is a concerted refusal by CJA lawyers to accept any further assignments until they receive an increase in their compensation; the undenied objective of their boycott was an economic advantage for those who agreed to participate. It is true that the Claiborne Hardware case also involved a boycott. That boycott, however, differs in a decisive respect. Those who joined the Claiborne Hardware boycott sought no special advantage for themselves. They were black citizens in Port Gibson, Mississippi, who had been the victims of political, social, and economic discrimination for many years. They sought only the equal respect and equal treatment to which they were constitutionally entitled. They struggled "to change a social order that had consistently treated them as second class citizens." 458 U.S. at 458 U. S. 912. As we observed, the campaign was not Page 493 U. S. 427 intended "to destroy legitimate competition." Id. at 458 U. S. 914. Equality and freedom are preconditions of the free market, and not commodities to be haggled over within it.The same cannot be said of attorney's fees. As we recently pointed out, our reasoning in Claiborne Hardware is not applicable to a boycott conducted by business competitors who "stand to profit financially from a lessening of competition in the boycotted market." Allied Tube Corp. v. Indian Head, supra, at 486 U. S. 508. [Footnote 10] No matter how altruistic the motives of respondents may have been, it is undisputed that their immediate objective was to increase the price that they would be paid for their services. Such an economic boycott is well within the category that was expressly distinguished in the Claiborne Hardware opinion itself. 458 U.S. at 458 U. S. 914-915. [Footnote 11] Page 493 U. S. 428Only after recognizing the well-settled validity of prohibitions against various economic boycotts did we conclude in Claiborne Hardware that "peaceful, political activity such as that found in the [Mississippi] boycott" are entitled to constitutional protection. [Footnote 12] We reaffirmed the government's "power to regulate [such] economic activity." Id. at 458 U. S. 912-913. This conclusion applies with special force when a clear objective of the boycott is to economically advantage the participants.VRespondents' concerted action in refusing to accept further CJA assignments until their fees were increased was thus a plain violation of the antitrust laws. The exceptions derived from Noerr and Claiborne Hardware have no application to respondents' boycott. For these reasons, we reject the arguments made by respondents in the cross-petition.The Court of Appeals, however, crafted a new exception to the per se rules, and it is this exception which provoked the Page 493 U. S. 429 FTC's petition to this Court. The Court of Appeals derived its exception from United States v. O'Brien, 391 U. S. 367 (1968). In that case, O'Brien had burned his Selective Service registration certificate on the steps of the South Boston Courthouse. He did so before a sizable crowd and with the purpose of advocating his antiwar beliefs. We affirmed his conviction. We held that the governmental interest in regulating the "nonspeech element" of his conduct adequately justified the incidental restriction on First Amendment freedoms. [Footnote 13] Specifically, we concluded that the statute's incidental restriction on O'Brien's freedom of expression was no greater than necessary to further the Government's interest in requiring registrants to have valid certificates continually available.However, the Court of Appeals held that, in light of O'Brien, the expressive component of respondents' boycott compelled courts to apply the antitrust laws "prudently and with sensitivity," 272 U.S.App.D.C. at 279-280, 856 F.2d at 233-234, with a "special solicitude for the First Amendment rights" of respondents. The Court of Appeals concluded that the governmental interest in prohibiting boycotts is not sufficient to justify a restriction on the communicative element of the boycott unless the FTC can prove, and not merely presume, that the boycotters have market power. Because the Court of Appeals imposed this special requirement upon the Government, it ruled that per se antitrust Page 493 U. S. 430 analysis was inapplicable to boycotts having an expressive component.There are at least two critical flaws in the Court of Appeals' antitrust analysis: it exaggerates the significance of the expressive component in respondents' boycott and it denigrates the importance of the rule of law that respondents violated. Implicit in the conclusion of the Court of Appeals are unstated assumptions that most economic boycotts do not have an expressive component, and that the categorical prohibitions against price fixing and boycotts are merely rules of "administrative convenience" that do not serve any substantial governmental interest unless the price-fixing competitors actually possess market power.It would not much matter to the outcome of this case if these flawed assumptions were sound. O'Brien would offer respondents no protection even if their boycott were uniquely expressive and even if the purpose of the per se rules were purely that of administrative efficiency. We have recognized that the Government's interest in adhering to a uniform rule may sometimes satisfy the O'Brien test, even if making an exception to the rule in a particular case might cause no serious damage. United States v. Albertini, 472 U. S. 675, 472 U. S. 688 (1985) ("The First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely because a party contends that allowing an exception in the particular case will not threaten important government interests"). The administrative efficiency interests in antitrust regulation are unusually compelling. The per se rules avoid"the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable."Northern Pac. R. Co. v. United States, 356 U. S. 1, 356 U. S. 5 (1958). If small parties"were allowed to prove lack of market power, all parties would have that right, thus introducing the enormous complexities of market definition Page 493 U. S. 431 into every price-fixing case."R. Bork, The Antitrust Paradox 269 (1978). For these reasons, it is at least possible that the Claiborne Hardware doctrine, which itself rests in part upon O'Brien, [Footnote 14] exhausts O'Brien's application to the antitrust statutes.In any event, however, we cannot accept the Court of Appeals' characterization of this boycott or the antitrust laws. Every concerted refusal to do business with a potential customer or supplier has an expressive component. At one level, the competitors must exchange their views about their objectives and the means of obtaining them. The most blatant, naked price-fixing agreement is a product of communication, but that is surely not a reason for viewing it with special solicitude. At another level, after the terms of the boycotters' demands have been agreed upon, they must be communicated to its target: "we will not do business until you do what we ask." That expressive component of the boycott conducted by these respondents is surely not unique. On the contrary, it is the hallmark of every effective boycott.At a third level, the boycotters may communicate with third parties to enlist public support for their objectives; to the extent that the boycott is newsworthy, it will facilitate the expression of the boycotters' ideas. But this level of expression is not an element of the boycott. Publicity may be generated by any other activity that is sufficiently newsworthy. Some activities, including the boycott here, may be newsworthy precisely for the reasons that they are prohibited: the harms they produce are matters of public concern. Certainly that is no reason for removing the prohibition.In sum, there is thus nothing unique about the "expressive component" of respondents' boycott. A rule that requires courts to apply the antitrust laws "prudently and with sensitivity" whenever an economic boycott has an "expressive component" would create a gaping hole in the fabric of those Page 493 U. S. 432 laws. Respondents' boycott thus has no special characteristics meriting an exemption from the per se rules of antitrust law.Equally important is the second error implicit in respondents' claim to immunity from the per se rules. In its opinion, the Court of Appeals assumed that the antitrust laws permit, but do not require, the condemnation of price fixing and boycotts without proof of market power. [Footnote 15] The opinion further assumed that the per se rule prohibiting such activity "is only a rule of administrative convenience and efficiency,' not a statutory command." 272 U.S.App.D.C. at 295, 856 F.2d at 249. This statement contains two errors. The per se Page 493 U. S. 433 rules are, of course, the product of judicial interpretations of the Sherman Act, but the rules nevertheless have the same force and effect as any other statutory commands. Moreover, while the per se rule against price fixing and boycotts is indeed justified in part by "administrative convenience," the Court of Appeals erred in describing the prohibition as justified only by such concerns. The per se rules also reflect a long-standing judgment that the prohibited practices by their nature have "a substantial potential for impact on competition." Jefferson Parish Hospital District, 466 U.S. at 466 U. S. 16.As we explained in Professional Engineers, the rule of reason in antitrust law generates"two complementary categories of antitrust analysis. In the first category are agreements whose nature and necessary effect are so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality -- they are "illegal per se.'" In the second category are agreements whose competitive effect can only be evaluated by analyzing the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed." 435 U.S. at 435 U. S. 692."Once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it, it has applied a conclusive presumption that the restraint is unreasonable."Arizona v. Maricopa County Medical Society, 457 U. S. 332, 457 U. S. 344 (1982).The per se rules in antitrust law serve purposes analogous to per se restrictions upon, for example, stunt flying in congested areas or speeding. Laws prohibiting stunt flying or setting speed limits are justified by the State's interest in protecting human life and property. Perhaps most violations of such rules actually cause no harm. No doubt many experienced drivers and pilots can operate much more safely, even at prohibited speeds, than the average citizen. Page 493 U. S. 434If the especially skilled drivers and pilots were to paint messages on their cars, or attach streamers to their planes, their conduct would have an expressive component. High speeds and unusual maneuvers would help to draw attention to their messages. Yet the laws may nonetheless be enforced against these skilled persons without proof that their conduct was actually harmful or dangerous.In part, the justification for these per se rules is rooted in administrative convenience. They are also supported, however, by the observation that every speeder and every stunt pilot poses some threat to the community. An unpredictable event may overwhelm the skills of the best driver or pilot, even if the proposed course of action was entirely prudent when initiated. A bad driver going slowly may be more dangerous than a good driver going quickly, but a good driver who obeys the law is safer still.So it is with boycotts and price fixing. [Footnote 16] Every such horizontal arrangement among competitors poses some threat to the free market. A small participant in the market is, obviously, less likely to cause persistent damage than a large participant. Other participants in the market may act quickly and effectively to take the small participant's place. For reasons including market inertia and information failures, however, a small conspirator may be able to impede competition Page 493 U. S. 435 over some period of time. [Footnote 17] Given an appropriate set of circumstances and some luck, the period can be long enough to inflict real injury upon particular consumers or competitors. [Footnote 18]As Justice Douglas observed in an oft-quoted footnote to his United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940), opinion,"Price-fixing agreements may or may not be aimed at complete elimination of price competition. The group making those agreements may or may not have power to control the market. But the fact that the group cannot control the market prices does not necessarily mean that the agreement as to prices has no utility to the members of the combination. The effectiveness of price-fixing agreements is dependent on many factors, such as competitive tactics, position in the industry, the formula underlying pricing policies. Whatever economic justification particular price-fixing agreements may be thought to have, the law does not permit an inquiry into their reasonableness. They are all banned because of their actual or potential threat to the central nervous system of the economy."Id. at 310 U. S. 225-226, n. 59. See also Maricopa County Medical Society, 457 U.S. at 457 U. S. 351, and n. 23.Of course, some boycotts and some price fixing agreements are more pernicious than others; some are only partly successful, and some may only succeed when they are buttressed by other causative factors, such as political influence. But Page 493 U. S. 436 an assumption that, absent proof of market power, the boycott disclosed by this record was totally harmless -- when overwhelming testimony demonstrated that it almost produced a crisis in the administration of criminal justice in the District and when it achieved its economic goal -- is flatly inconsistent with the clear course of our antitrust jurisprudence. Conspirators need not achieve the dimensions of a monopoly, or even a degree of market power any greater than that already disclosed by this record, to warrant condemnation under the antitrust laws.VIThe judgment of the Court of Appeals is accordingly reversed insofar as that court held the per se rules inapplicable to the lawyers' boycott. [Footnote 19] The case is remanded for further proceedings consistent with this opinion. [Footnote 20]It is so ordered

U.S. Supreme CourtFTC v. Superior Ct. TLA, 493 U.S. 411 (1990)Federal Trade Commission v. Superior CourtTrial Lawyers AssociationNos. 88-1198, 88-1393Argued Oct. 30, 1989Decided Jan. 22, 1990493 U.S. 411SyllabusA group of lawyers in private practice who regularly acted as court-appointed counsel for indigent defendants in District of Columbia criminal cases agreed at a meeting of the Superior Court Trial Lawyers Association (SCTLA) to stop providing such representation until the District increased group members' compensation. The boycott had a severe impact on the District's criminal justice system, and the District government capitulated to the lawyers' demands. After the lawyers returned to work, petitioner Federal Trade Commission (FTC) filed a complaint against SCTLA and four of its officers (respondents), alleging that they had entered into a conspiracy to fix prices and to conduct a boycott that constituted unfair methods of competition in violation of § 5 of the FTC Act. Declining to accept the conclusion of the Administrative Law Judge (ALJ) that the complaint should be dismissed, the FTC ruled that the boycott was illegal per se and entered an order prohibiting respondents from initiating future such boycotts. The Court of Appeals, although acknowledging that the boycott was a "classic restraint of trade" in violation of § 1 of the Sherman Act, vacated the FTC order. Noting that the boycott was meant to convey a political message to the public, the court concluded that it contained an element of expression warranting First Amendment protection and that, under United States v. O'Brien, 391 U. S. 367, an incidental restriction on such expression could not be justified unless it was no greater than was essential to an important governmental interest. Reasoning that this test could not be satisfied by the application of an otherwise appropriate per se rule, but instead requires the enforcement agency to prove rather than presume that the evil against which the antitrust laws are directed looms in the conduct it condemns, the court remanded for a determination whether respondents possessed "significant market power." Page 493 U. S. 412Held:1. Respondents' boycott constituted a horizontal arrangement among competitors that was unquestionably a naked restraint of price and output in violation of the antitrust laws. Respondents' proffered social justifications for the restraint of trade do not make the restraint any less unlawful. Nor is respondents' agreement outside the coverage of the antitrust laws under Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, simply because its objective was the enactment of favorable legislation. The Noerr doctrine does not extend to horizontal boycotts designed to exact higher prices from the government simply because they are genuinely intended to influence the government to agree to the conspirators' terms. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U. S. 492, 486 U. S. 503. 493 U. S. 421-425.2. Respondents' boycott is not immunized from antitrust regulation by NAACP v. Claiborne Hardware Co., 458 U. S. 886, which held that the First Amendment prevented a State from prohibiting a politically motivated civil rights boycott. Unlike the boycott upheld in Claiborne Hardware, the undenied objective of this boycott was to gain an economic advantage for those who agreed to participate. 458 U.S. at 458 U. S. 914-915. 493 U. S. 425-428.3. The Court of Appeals erred in creating a new exception, based on O'Brien, supra, to the antitrust per se liability rules for boycotts having an expressive component. The court's analysis is critically flawed in at least two respects. First, it exaggerates the significance of the "expressive component" in respondents' boycott, since every concerted refusal to do business with a potential customer or supplier has such a component. Thus, a rule requiring courts to apply the antitrust laws "prudently and with sensitivity," in the Court of Appeals' words, whenever an economic boycott has an "expressive component" would create a gaping hole in the fabric of those laws. Second, the Court of Appeals' analysis denigrates the importance of the rule of law that respondents violated. The court's implicit assumption that the antitrust laws permit, but do not require, the condemnation of price fixing and boycotts without proof of market power is in error, since, although the per se rules are the product of judicial interpretation of the Sherman Act, they nevertheless have the same force and effect as any other statutory commands. The court also erred in assuming that the categorical antitrust prohibitions are "only" rules of "administrative convenience" that do not serve any substantial governmental interest unless the price-fixing competitors actually possess market power. The per se rules reflect a longstanding judgment that every horizontal price-fixing arrangement among competitors poses some threat to the free market, even if the participants Page 493 U. S. 413 do not themselves have the power to control market prices. Pp. 493 U. S. 428-436.272 U.S.App.D.C. 272, 856 F.2d 226 (CADC 1988), reversed in part and remanded.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and in Parts I, II, III, and IV of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 493 U. S. 436. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, post, p. 493 U. S. 453 Page 493 U. S. 414

1960_34

MR. JUSTICE CLARK delivered the opinion of the Court.Petitioner challenges on constitutional grounds the validity on its face of that portion of § 155-4 [Footnote 1] of the Municipal Code of the City of Chicago which requires submission of all motion pictures for examination prior to their public exhibition. Petitioner is a New York corporation owning the exclusive right to publicly exhibit in Chicago the film known as "Don Juan." It applied for a permit, as Chicago's ordinance required, and tendered the license fee, but refused to submit the film for examination. The appropriate city official refused to issue the permit, and his order was made final on appeal to the Mayor. The sole ground for denial was petitioner's refusal to submit the film for examination as required. Petitioner then brought this suit seeking injunctive relief ordering the issuance of the permit without submission of the film and restraining the city officials from interfering with the exhibition of the picture. Its sole ground is that the provision of the ordinance requiring submission of the film constitutes, on its face, a prior restraint within the prohibition of the First and Fourteenth Amendments. The District Court dismissed the complaint on the grounds, inter alia, that neither a substantial federal question nor even a justiciable controversy was presented. 180 F. Supp. 843. The Court of Appeals affirmed, finding that the case presented merely an abstract question of law, since neither the film nor evidence of its content was submitted. 272 F.2d 90. The precise question at issue here never having Page 365 U. S. 45 been specifically decided by this Court, we granted certiorari, 362 U.S. 917 (1960).We are satisfied that a justiciable controversy exists. The section of Chicago's ordinance in controversy specifically provides that a permit for the public exhibition of a motion picture must be obtained; that such"permit shall be granted only after the motion picture film for which said permit is requested has been produced at the office of the commissioner of police for examination;"that the commissioner shall refuse the permit if the picture does not meet certain standards; [Footnote 2] and that, in the event of such refusal, the applicant may appeal to the mayor for a de novo hearing, and his action shall be final. Violation of the ordinance carries certain punishments. The petitioner complied with the requirements of the ordinance, save for the production of the film for examination. The claim is that this concrete and specific statutory requirement, Page 365 U. S. 46 the production of the film at the office of the commissioner for examination, is invalid as a previous restraint on freedom of speech. In Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S. 502 (1952), we held that motion pictures are included "within the free speech and free press guaranty of the First and Fourteenth Amendments." Admittedly, the challenged section of the ordinance imposes a previous restraint, and the broad justiciable issue is therefore present as to whether the ambit of constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture. It is that question alone which we decide. We have concluded that § 155-4 of Chicago's ordinance requiring the submission of films prior to their public exhibition is not, on the grounds set forth, void on its face.Petitioner's narrow attack upon the ordinance does not require that any consideration be given to the validity of the standards set out therein. They are not challenged, and are not before us. Prior motion picture censorship cases which reached this Court involved questions of standards. [Footnote 3] The films had all been submitted to the authorities, and permits for their exhibition were refused because of their content. Obviously, whether a particular statute is "clearly drawn," or "vague," or "indefinite," or whether a clear standard is in fact met by a film are different questions involving other constitutional challenges to be tested by considerations not here involved.Moreover, there is not a word in the record as to the nature and content of "Don Juan." We are left entirely Page 365 U. S. 47 in the dark in this regard, as were the city officials and the other reviewing courts. Petitioner claims that the nature of the film is irrelevant, and that even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government, it may nonetheless be shown without prior submission for examination. The challenge here is to the censor's basic authority; it does not go to any statutory standards employed by the censor or procedural requirements as to the submission of the film.In this perspective, we consider the prior decisions of this Court touching on the problem. Beginning over a third of a century ago, in Gitlow v. New York, 268 U. S. 652 (1925), they have consistently reserved for future decision possible situations in which the claimed First Amendment privilege might have to give way to the necessities of the public welfare. It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. Minnesota, 283 U. S. 697, 283 U. S. 715-716 (1931), Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint"is stated too broadly, if every such restraint is deemed to be prohibited. . . . [T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases."These included, the Chief Justice found, utterances creating "a hindrance" to the Government's war effort, and "actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." In addition, the Court said that "the primary requirements of decency may be enforced against obscene publications" and the"security of the community life may be protected against incitements to acts of violence and the overthrow by force Page 365 U. S. 48 of orderly government."Some years later, a unanimous Court, speaking through Mr. Justice Murphy, in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572 (1942), held that there were"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, the profane, the libelous, and the insulting or 'fighting' words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace."Thereafter, as we have mentioned, in Joseph Burstyn, Inc. v. Wilson, supra, we found motion pictures to be within the guarantees of the First and Fourteenth Amendments, but we added that this was"not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places."At p. 343 U. S. 502. Five years later, in Roth v. United States, 354 U. S. 476, 354 U. S. 483 (1957), we held that "in light of . . . history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance." Even those in dissent there found that"Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it."Id. at 354 U. S. 514. And, during the same Term, in Kingsley Books, Inc. v. Brown, 354 U. S. 436, 354 U. S. 441 (1957), after characterizing Near v. Minnesota, supra, as "one of the landmark opinions" in its area, we took notice that Near"left no doubts that 'Liberty of speech, and of the press, is also not an absolute right . . . the protection even as to previous restraint is not absolutely unlimited.' . . . The judicial angle of vision,"we said there,"in testing the validity of a statute like § 22-a [New York's injunctive remedy against certain forms of obscenity] is 'the operation and effect of the statute in substance.'"And as if to emphasize the point involved Page 365 U. S. 49 here, we added that "The phrase prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test." Even as recently as our last Term, we again observed the principle, albeit in an allied area, that the State possesses some measure of power "to prevent the distribution of obscene matter." Smith v. California, 361 U. S. 147, 361 U. S. 155 (1959).Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. The State's sole remedy, it says, is the invocation of criminal process under the Illinois pornography statute, Ill.Rev.Stat. (1959), c. 38, § 470, and then only after a transgression. But this position, as we have seen, is founded upon the claim of absolute privilege against prior restraint under the First Amendment -- a claim without sanction in our cases. To illustrate its fallacy, we need only point to one of the "exceptional cases" which Chief Justice Hughes enumerated in Near v. Minnesota, supra, namely, "the primary requirements of decency [that] may be enforced against obscene publications." Moreover, we later held specifically "that obscenity is not within the area of constitutionally protected speech or press." Roth v. United States, 354 U. S. 476, 354 U. S. 485 (1957). Chicago emphasizes here its duty to protect its people against the dangers of obscenity in the public exhibition of motion pictures. To this argument petitioner's only answer is that, regardless of the capacity for, or extent of, such an evil, previous restraint cannot be justified. With this we cannot agree. We recognized in Burstyn, supra, that "capacity for evil . . . may be relevant in determining the permissible scope of community control," 343 U.S. at 343 U. S. 502, and that motion pictures were not "necessarily subject to the precise rules governing any other particular method of expression. Each method," we said, "tends to present its own peculiar problems." At p. 343 U. S. 503. Certainly petitioner's broadside Page 365 U. S. 50 attack does not warrant, nor could it justify on the record here, our saying that -- aside from any consideration of the other "exceptional cases" mentioned in our decisions -- the State is stripped of all constitutional power to prevent, in the most effective fashion, the utterance of this class of speech. It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances. Kingsley Books, Inc. v. Brown, supra, at 354 U. S. 441. We, of course, are not holding that city officials may be granted the power to prevent the showing of any motion picture they deem unworthy of a license. Joseph Burstyn, Inc. v. Wilson, supra, at 343 U. S. 504-505.As to what may be decided when a concrete case involving a specific standard provided by this ordinance is presented, we intimate no opinion. The petitioner has not challenged all -- or, for that matter, any -- of the ordinance's standards. Naturally we could not say that every one of the standards, including those which Illinois' highest court has found sufficient, is so vague on its face that the entire ordinance is void. At this time, we say no more than this -- that we are dealing only with motion pictures, and, even as to them, only in the context of the broadside attack presented on this record.Affirmed

U.S. Supreme CourtTimes Film Corp. v. City of Chicago, 365 U.S. 43 (1961)Times Film Corp. v. City of ChicagoNo. 34Argued October 19-20, 1960Decided January 23, 1961365 U.S. 43SyllabusThe Municipal Code of Chicago, § 155-4, requires submission of all motion pictures for examination or censorship prior to their public exhibition and forbids their exhibition unless they meet certain standards. Petitioner applied for a permit to exhibit a certain motion picture and tendered the required license fee, but the permit was denied solely because petitioner refused to submit the film for examination. Petitioner sued in a Federal District Court for injunctive relief ordering issuance of the permit without submission of the film and restraining the city officials from interfering with its exhibition. It did not submit the film to the court or offer any evidence as to its content. The District Court dismissed the complaint on the ground, inter alia, that neither a substantial federal question nor a justiciable controversy was presented.Held: the provision requiring submission of motion pictures for examination or censorship prior to their public exhibition is not void on its face as violative of the First and Fourteenth Amendments, and the judgment of dismissal is affirmed. Pp. 365 U. S. 44-50.(a) This case presents a justiciable controversy. Pp. 45-46.(b) Petitioner's narrow attack on the ordinance does not require that any consideration be given to the validity of the standards set out therein, since they are not challenged and are not before this Court. Pp. 365 U. S. 46-47.(c) It has never been held that liberty of speech is absolute, or that all prior restraints on speech are invalid. Pp. 365 U. S. 47-49.(d) Although motion pictures are included within the free speech and free press guaranties of the First and Fourteenth Amendments, there is no absolute freedom to exhibit publicly, at least once, every kind of motion picture. Pp. 365 U. S. 46, 365 U. S. 49-50.272 F.2d 90 affirmed. Page 365 U. S. 44

1992_91-1833

nouncements of the sort at issue here. This analysis is confirmed by Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, which stands for the proposition that decisions to expend otherwise unrestricted funds are not, without more, subject to § 553's notice-andcomment requirements. Finally, the Court of Appeals erred in holding that Morton v. Ruiz, supra, required the Service to abide by § 553's notice-and-comment requirements. Those requirements were not at issue in Ruiz. Pp. 195-199.953 F.2d 1225, reversed and remanded.SOUTER, J., delivered the opinion for a unanimous Court.Edwin S. Kneedler argued the cause for petitioners.With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General O'Meara, James A. Feldman, Anne S. Almy, John A. Bryson, and Andrew C. Mergen.Joel R. Jasperse argued the cause and filed a brief for respondents. *JUSTICE SOUTER delivered the opinion of the Court.For several years in the late 1970's and early 1980's, the Indian Health Service provided diagnostic and treatment services, referred to collectively as the Indian Children's Program (Program), to handicapped Indian children in the Southwest. In 1985, the Service decided to reallocate the Program's resources to a nationwide effort to assist such children. We hold that the Service's decision to discontinue the Program was "committed to agency discretion by law" and therefore not subject to judicial review under the Administrative Procedure Act, 5 U. S. C. § 701(a)(2), and that the Service's exercise of that discretion was not subject to the notice-and-comment rulemaking requirements imposed by §553.*Briefs of amici curiae urging affirmance were filed for Bristol Bay Area Health Corp. et al. by Charles A. Hobbs; for the National Congress of American Indians et al. by Steven C. Moore; and for the Native American Protection & Advocacy Project et al. by Thomas W Christie.185IThe Indian Health Service, an agency within the Public Health Service of the Department of Health and Human Services, provides health care for some 1.5 million American Indian and Alaska Native people. Brief for Petitioners 2. The Service receives yearly lump-sum appropriations from Congress and expends the funds under authority of the Snyder Act, 42 Stat. 208, as amended, 25 U. S. C. § 13, and the Indian Health Care Improvement Act, 90 Stat. 1400, as amended, 25 U. S. C. § 1601 et seq. So far as it concerns us here, the Snyder Act authorizes the Service to "expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians," for the "relief of distress and conservation of health." 25 U. S. C. § 13.1 The Improvement Act authorizes expenditures for, inter alia, Indian mental-health care, and specifically for "therapeutic and residential treatment centers." § 1621(a)(4)(D).The Service employs roughly 12,000 people and operates more than 500 health-care facilities in the continental United States and Alaska. See Hearings on Department of the Interior and Related Agencies Appropriations for 1993 before a Subcommittee of the House Committee on Appropriations, 102d Cong., 2d Sess., pt. 4, p. 32 (1992); Brief for Petitioners 2. This case concerns a collection of related services, commonly known as the Indian Children's Program, that the Service provided from 1978 to 1985. In the words of the Court of Appeals, a "dou[d] [of] bureaucratic haze" obscures the history of the Program, Vigil v. Rhoades, 953 F.2d 1225, 1226 (CAlO 1992), which seems to have grown out of a plan "to establish therapeutic and residential treatment centers1 By its terms, the Snyder Act applies to the Bureau of Indian Affairs, an agency within the Department of the Interior. Under 42 U. S. C. § 2001(a), however, the Bureau's authorities and responsibilities with respect to "the conservation of the health of Indians" have been transferred to the Department of Health and Human Services.186for disturbed Indian children." H. R. Rep. No. 94-1026, pt. 1, p. 80 (1976) (prepared in conjunction with enactment of the Improvement Act). These centers were to be established under a "major cooperative care agreement" between the Service and the Bureau of Indian Affairs, id., at 81, and would have provided such children "with intensive care in a residential setting." Id., at 80.Congress never expressly appropriated funds for these centers. In 1978, however, the Service allocated approximately $292,000 from its fiscal year 1978 appropriation to its office in Albuquerque, New Mexico, for the planning and development of a pilot project for handicapped Indian children, which became known as the Indian Children's Program. See 953 F. 2d, at 1227. The pilot project apparently convinced the Service that a building was needed, and, in 1979, the Service requested $3.5 million from Congress to construct a diagnostic and treatment center for handicapped Indian children. See ibid.; Hearings on Department of the Interior and Related Agencies Appropriations for 1980 before a Subcommittee of the House Committee on Appropriations, 96th Cong., 1st Sess., pt. 8, p. 250 (1979) (hereinafter House Hearings (Fiscal Year 1980)). The appropriation for fiscal year 1980 did not expressly provide the requested funds, however, and legislative reports indicated only that Congress had increased the Service's funding by $300,000 for nationwide expansion and development of the Program in coordination with the Bureau. See H. R. Rep. No. 96-374, pp. 82-83 (1979); S. Rep. No. 96-363, p. 91 (1979).Plans for a national program to be managed jointly by the Service and the Bureau were never fulfilled, however, and the Program continued simply as an offering of the Service's Albuquerque office, from which the Program's staff of 11 to 16 employees would make monthly visits to Indian communities in New Mexico and southern Colorado and on the Navajo and Hopi Reservations. Brief for Petitioners 6. The Program's staff provided "diagnostic, evaluation, treatment187planning and followup services" for Indian children with emotional, educational, physical, or mental handicaps. "For parents, community groups, school personnel and health care personnel," the staff provided "training in child development, prevention of handicapping conditions, and care of the handicapped child." Hearings on Department of the Interior and Related Agencies Appropriations for 1984 before a Subcommittee of the House Committee on Appropriations, 98th Cong., 1st Sess., pt. 3, p. 374 (1983) (Service submission) (hereinafter House Hearings (Fiscal Year 1984)). Congress never authorized or appropriated moneys expressly for the Program, and the Service continued to pay for its regional activities out of annual lump-sum appropriations from 1980 to 1985, during which period the Service repeatedly apprised Congress of the Program's continuing operation. See, e. g., Hearings on Department of the Interior and Related Agencies Appropriations for 1985 before a Subcommittee of the House Committee on Appropriations, 98th Cong., 2d Sess., pt. 3, p. 486 (1984) (Service submission); House Hearings (Fiscal Year 1984), pt. 3, pp. 351, 374 (same); Hearings on Department of the Interior and Related Agencies Appropriations for 1983 before a Subcommittee of the House Committee on Appropriations, 97th Cong., 2d Sess., pt. 3, p. 167 (1982) (same); Hearings on Department of the Interior and Related Agencies Appropriations for 1982 before a Subcommittee of the House Committee on Appropriations, 97th Cong., 1st Sess., pt. 9, p. 71 (1981) (testimony of Service Director); Hearings on Department of the Interior and Related Agencies Appropriations for 1981 before a Subcommittee of the House Committee on Appropriations, 96th Cong., 2d Sess., pt. 3, p. 632 (1980) (Service submission); House Hearings (Fiscal Year 1980), pt. 8, pp. 245-252 (testimony of Service officials); H. R. Rep. No. 97-942, p. 110 (1982) (House Appropriations Committee "is pleased to hear of the continued success of the Indian Children's Program").188Nevertheless, the Service had not abandoned the proposal for a nationwide treatment program, and in June 1985 it notified those who referred patients to the Program that it was "re-evaluating [the Program's] purpose ... as a national mental health program for Indian children and adolescents." App. 77. In August 1985, the Service determined that Program staff hitherto assigned to provide direct clinical services should be reassigned as consultants to other nationwide Service programs, 953 F. 2d, at 1226, and discontinued the direct clinical services to Indian children in the Southwest. The Service announced its decision in a memorandum, dated August 21, 1985, addressed to Service offices and Program referral sources:"As you are probably aware, the Indian Children's Program has been involved in planning activities focusing on a national program effort. This process has included the termination of all direct clinical services to children in the Albuquerque, Navajo and Hopi reservation service areas. During the months of August and September, ... staff will [see] children followed by the program in an effort to update programs, identify alternative resources and facilitate obtaining alternative services. In communities where there are no identified resources, meetings with community service providers will be scheduled to facilitate the networking between agencies to secure or advocate for appropriate services." App.80.The Service invited public "input" during this "difficult transition," and explained that the reallocation of resources had been "motivated by our goal of increased mental health services for all Indian [c]hildren." Ibid.22 As of August 1985, the Program was providing services for 426 handicapped Indian children, and the Bureau continues to provide services for such children in discharging its responsibilities under the Education for All Handicapped Children Act of 1975, 89 Stat. 773, as amended, 20 U. S. C. § 1400 et seq. Vigil v. Rhoades, 953 F.2d 1225, 1227 (CAlO 1992).189Respondents, handicapped Indian children eligible to receive services through the Program, subsequently brought this action for declaratory and injunctive relief against petitioners, the Director of the Service and others (collectively, the Service), in the United States District Court for the District of New Mexico. Respondents alleged, inter alia, that the Service's decision to discontinue direct clinical services violated the federal trust responsibility to Indians, the Snyder Act, the Improvement Act, the Administrative Procedure Act, various agency regulations, and the Fifth Amendment's Due Process Clause.The District Court granted summary judgment for respondents. Vigil v. Rhoades, 746 F. Supp. 1471 (1990). The District Court held that the Service's decision to discontinue the Program was subject to judicial review, rejecting the argument that the Service's decision was "committed to agency discretion by law" under the Administrative Procedure Act (APA), 5 U. S. C. § 701(a)(2). 746 F. Supp., at 1479. The court declined on ripeness grounds, however, to address the merits of the Service's action. It held that the Service's decision to discontinue the Program amounted to the making of a "legislative rule" subject to the APA's notice-and-comment requirements, 5 U. S. C. § 553, and that the termination was also subject to the APA's publication requirements for the adoption of "statements of general policy," §552(a)(1)(D). See 746 F. Supp., at 1480, 1483. Because the Service had not met these procedural requirements, the court concluded that the termination was procedurally invalid and that judicial review would be "premature." Id., at 1483. The court ordered the Service to reinstate the Program, id., at 1486-1487, and the Solicitor General has represented that a reinstated Program is now in place. Brief for Petitioners 9.The Court of Appeals affirmed. Like the District Court, it rejected the Service's argument that the decision to discontinue the Program was committed to agency discretion190under the AP A. Although the court concededly could identify no statute or regulation even mentioning the Program, see 953 F. 2d, at 1229, it believed that the repeated references to it in the legislative history of the annual appropriations Acts, supra, at 187, "in combination with the special relationship between the Indian people and the federal government," 953 F. 2d, at 1230, provided a basis for judicial review. The Court of Appeals also affirmed the District Court's ruling that the Service was subject to the AP A's notice-and-comment procedures in terminating the Program, reasoning that our decision in Morton v. Ruiz, 415 U. S. 199 (1974), requires as much whenever the Federal Government " 'cuts back congressionally created and funded programs for Indians.'" 953 F. 2d, at 1231 (citation omitted). The Court of Appeals did not consider whether the AP A's publication requirements applied to the Service's decision to terminate the Program or whether the District Court's order to reinstate the Program was a proper form of relief, an issue the Service had failed to raise. Id., at 1231-1232. We granted certiorari to address the narrow questions presented by the Court of Appeals's decision. 506 U. S. 813 (1992).IIFirst is the question whether it was error for the Court of Appeals to hold the substance of the Service's decision to terminate the Program reviewable under the AP A. The APA provides that "[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, and we have read the APA as embodying a "basic presumption of judicial review," Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967). This is "just" a presumption, however, Block v. Community Nutrition Institute, 467 U. S. 340, 349 (1984), and under § 701(a)(2) agency action is not subject to judicial review "to the extent that" such action "is committed191to agency discretion by law."3 As we explained in Heckler v. Chaney, 470 U. S. 821, 830 (1985), § 701(a)(2) makes it clear that "review is not to be had" in those rare circumstances where the relevant statute "is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." See also Webster v. Doe, 486 U. S. 592, 599-600 (1988); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 410 (1971). "In such a case, the statute ('law') can be taken to have 'committed' the decisionmaking to the agency's judgment absolutely." Heckler, supra, at 830.Over the years, we have read § 701(a)(2) to preclude judicial review of certain categories of administrative decisions that courts traditionally have regarded as "committed to agency discretion." See Franklin v. Massachusetts, 505 U. S. 788, 817 (1992) (STEVENS, J., concurring in part and concurring in judgment); Webster, supra, at 609 (SCALIA, J., dissenting). In Heckler itself, we held an agency's decision not to institute enforcement proceedings to be presumptively unreviewable under § 701(a)(2). 470 U. S., at 831. An agency's "decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise," ibid., and for this and other good reasons, we concluded, "such a decision has traditionally been 'committed to agency discretion,'" id., at 832. Similarly, in ICC v. Locomotive Engineers, 482 U. S. 270, 282 (1987), we held that § 701(a)(2) precludes judicial review of another type of administrative decision traditionally left to agency discretion, an agency's refusal to grant reconsideration of an action because of material error. In so holding, we emphasized "the impossibility of devising an adequate standard of review for such3 In full, § 701 (a) provides: "This chapter [relating to judicial review] applies, according to the provisions thereof, except to the extent that(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." The parties have not addressed, and we have no occasion to consider, the application of § 701(a)(1) in this case.192agency action." Ibid. Finally, in Webster, supra, at 599601, we held that § 701(a)(2) precludes judicial review of a decision by the Director of Central Intelligence to terminate an employee in the interests of national security, an area of executive action "in which courts have long been hesitant to intrude." Franklin, supra, at 819 (STEVENS, J., concurring in part and concurring in judgment).The allocation of funds from a lump-sum appropriation is another administrative decision traditionally regarded as committed to agency discretion. After all, the very point of a lump-sum appropriation is to give an agency the capacity to adapt to changing circumstances and meet its statutory responsibilities in what it sees as the most effective or desirable way. See International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Donovan, 241 U. S. App. D. C. 122, 128, 746 F.2d 855, 861 (1984) (Scalia, J.) ("A lump-sum appropriation leaves it to the recipient agency (as a matter of law, at least) to distribute the funds among some or all of the permissible objects as it sees fit") (footnote omitted), cert. denied sub nom. Automobile Workers v. Brock, 474 U. S. 825 (1985); 2 United States General Accounting Office, Principles of Federal Appropriations Law, p. 6-159 (2d ed. 1992). For this reason, a fundamental principle of appropriations law is that where "Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on" the agency. LTV Aerospace Corp., 55 Compo Gen. 307, 319 (1975); cf. American Hospital Assn. v. NLRB, 499 U. S. 606, 616 (1991) (statements in committee reports do not have the force oflaw); TVA v. Hill, 437 U. S. 153, 191 (1978) ("Expressions of committees dealing with requests for ap-193propriations cannot be equated with statutes enacted by Congress"). Put another way, a lump-sum appropriation reflects a congressional recognition that an agency must be allowed "flexibility to shift ... funds within a particular ... appropriation account so that" the agency "can make necessary adjustments for 'unforeseen developments'" and "'changing requirements.'" LTV Aerospace Corp., supra, at 318 (citation omitted).Like the decision against instituting enforcement proceedings, then, an agency's allocation of funds from a lump-sum appropriation requires "a complicated balancing of a number of factors which are peculiarly within its expertise": whether its "resources are best spent" on one program or another; whether it "is likely to succeed" in fulfilling its statutory mandate; whether a particular program "best fits the agency's overall policies"; and, "indeed, whether the agency has enough resources" to fund a program "at all." Heckler, 470 U. S., at 831. As in Heckler, so here, the "agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities." Id., at 831-832. Of course, an agency is not free simply to disregard statutory responsibilities: Congress may always circumscribe agency discretion to allocate resources by putting restrictions in the operative statutes (though not, as we have seen, just in the legislative history). See id., at 833. And, of course, we hardly need to note that an agency's decision to ignore congressional expectations may expose it to grave political consequences. But as long as the agency allocates funds from a lump-sum appropriation to meet permissible statutory objectives, § 701(a)(2) gives the courts no leave to intrude. "[T]o [that] extent," the decision to allocate funds "is committed to agency discretion by law." § 701(a)(2).The Service's decision to discontinue the Program is accordingly unreviewable under § 701(a)(2). As the Court of Appeals recognized, the appropriations Acts for the relevant194period do not so much as mention the Program,4 and both the Snyder Act and the Improvement Act likewise speak about Indian health only in general terms. It is true that the Service repeatedly apprised Congress of the Program's continued operation, but, as we have explained, these representations do not translate through the medium of legislative history into legally binding obligations. The reallocation of agency resources to assist handicapped Indian children nationwide clearly falls within the Service's statutory mandate to provide health care to Indian people, see supra, at 185, and respondents, indeed, do not seriously contend otherwise. The decision to terminate the Program was committed to the Service's discretion.The Court of Appeals saw a separate limitation on the Service's discretion in the special trust relationship existing between Indian people and the Federal Government. 953 F. 2d, at 1230-1231. We have often spoken of this relationship, see, e. g., Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831) (Marshall, C. J.) (Indians' "relation to the United States resembles that of a ward to his guardian"), and the law is "well established that the Government in its dealings with Indian tribal property acts in a fiduciary capacity," United States v. Cherokee Nation of Okla., 480 U. S. 700, 707 (1987); see also4 Significantly, Congress did see fit on occasion to impose other statutory restrictions on the Service's allocation of funds from its lump-sum appropriations. For example, the appropriations Act for fiscal year 1985 provided that "none of the funds appropriated under this Act to [the Service] shall be available for the initial lease of permanent structures without advance provision therefor in appropriations Acts." Pub. L. 98-473, 98 Stat. 1864. Similarly, the appropriations Act for fiscal year 1983 provided that "notwithstanding current regulations, eligibility for Indian Health Services shall be extended to non-Indians in only two situations: (1) a non-Indian woman pregnant with an eligible Indian's child for the duration of her pregnancy through postpartum, and (2) non-Indian members of an eligible Indian's household if the medical officer in charge determines that this is necessary to control acute infectious disease or a public health hazard." Pub. L. 97-394, 96 Stat. 1990.195Quick Bear v. Leupp, 210 U. S. 50, 80 (1908) (distinguishing between money appropriated to fulfill treaty obligations, to which trust relationship attaches, and "gratuitous appropriations"). Whatever the contours of that relationship, though, it could not limit the Service's discretion to reorder its priorities from serving a subgroup of beneficiaries to serving the broader class of all Indians nationwide. See Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (CA9 1986) (Federal Government "does have a fiduciary obligation to the Indians; but it is a fiduciary obligation that is owed to all Indian tribes") (emphasis added).One final note: although respondents claimed in the District Court that the Service's termination of the Program violated their rights under the Fifth Amendment's Due Process Clause, see supra, at 189, that court expressly declined to address respondents' constitutional arguments, 746 F. Supp., at 1483, as did the Court of Appeals, 953 F. 2d, at 1228-1229, n. 3. Thus, while the APA contemplates, in the absence of a clear expression of contrary congressional intent, that judicial review will be available for colorable constitutional claims, see Webster, 486 U. S., at 603-604, the record at this stage does not allow mature consideration of constitutional issues, which we leave for the Court of Appeals on remand.IIIWe next consider the Court of Appeals's holding, quite apart from the matter of substantive reviewability, that before terminating the Program the Service was required to abide by the familiar notice-and-comment rulemaking provisions of the AP A, 5 U. S. C. § 553. Section 553 provides generally that an agency must publish notice of a proposed rulemaking in the Federal Register and afford "interested persons an opportunity to participate ... through submission of written data, views, or arguments." §§ 553(b), (c). The same section also generally requires the agency to publish a rule not less than 30 days before its effective date and196incorporate within it "a concise general statement" of the rule's "basis and purpose." §§ 553(c), (d). There are exceptions, of course. Section 553 has no application, for example, to "a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts." § 553(a)(2).5 The notice-and-comment requirements apply, moreover, only to so-called "legislative" or "substantive" rules; they do not apply to "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." § 553(b). See McLouth Steel Products Corp. v. Thomas, 267 U. S. App. D. C. 367, 370, 838 F.2d 1317, 1320 (1988); Community Nutrition Institute v. Young, 260 U. S. App. D. C. 294, 296-297, 818 F.2d 943, 945-946 (1987) (per curiam); id., at 301-303, 818 F. 2d, at 950-952 (Starr, J., concurring in part and dissenting in part); Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them to Bind the Public?, 41 Duke L. J. 1311, 1321 (1992); see generally Chrysler Corp. v. Brown, 441 U. S. 281, 301 (1979) (noting that this is "[t]he central distinction among agency regulations found in the APA").It is undisputed that the Service did not abide by these notice-and-comment requirements before discontinuing the Program and reallocating its resources. The Service argues that it was free from any such obligation because its decision to terminate the Program did not qualify as a "rule" within the meaning of the AP A. Brief for Petitioners 29-34. Respondents, to the contrary, contend that the Service's action falls well within the AP A's broad definition of that term. §551(4).6 Brief for Respondents 17-19. Determin-5 In "'matter[s] relating to ... benefits,'" the Secretary of Health and Human Services has determined, as a matter of policy, to abide by the APA's notice-and-comment requirements. Brief for Petitioners 33, n. 19. 6 Section 551(4) provides that" 'rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing197ing whether an agency's statement is what the AP A calls a "rule" can be a difficult exercise. We need not conduct that exercise in this case, however. For even assuming that a statement terminating the Program would qualify as a "rule" within the meaning of the AP A, it would be exempt from the notice-and-comment requirements of §553.7 Termination of the Program might be seen as affecting the Service's organization, but "rules of agency organization" are exempt from notice-and-comment requirements under § 553(b)(A). Moreover, § 553(b)(A) also exempts "general statements of policy," which we have previously described as "'statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.'" Chrysler Corp., supra, at 302, n. 31 (quoting Attorney General's Manual on the Administrative Procedure Act 30, n. 3 (1947)). Whatever else may be considered a "general statemen[t] of policy," the term surely includes an announcement like the one before us, that an agency will discontinue a discretionary allocation of unrestricted funds from a lump-sum appropriation.Our decision in Citizens to Preserve Overton Park, Inc. v.Volpe, 401 U. S. 402 (1971), confirms our conclusion that the Service was not required to follow the notice-and-comment procedures of § 553 before terminating the Program. Overton Park dealt with the Secretary of Transportation's decision to authorize the use of federal funds to construct an interstate highway through a public park in Memphis, Tennessee. Private citizens and conservation organizationsthe organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing."7We express no view on the application of the publication requirements of § 552, or on the propriety of the relief granted by the District Court. The Court of Appeals did not address these issues. See supra, at 190.198claimed that the Secretary's decision violated federal statutes prohibiting the use of federal funds for such a purpose where there existed a "'feasible and prudent'" alternative route, id., at 405 (citations omitted), and argued, inter alia, that the Secretary's determination was subject to judicial review under the AP A's "substantial evidence" standard, 5 U. S. C. § 706(2)(E). 401 U. S., at 414. In rejecting that contention, we explained that the substantial-evidence test applies, in addition to circumstances not relevant here, only where "agency action is taken pursuant to [the] rulemaking provision[s]" of § 553. We held unequivocally that "[t]he Secretary's decision to allow the expenditure of federal funds to build [the highway] through [the park] was plainly not an exercise of a rulemaking function." Ibid.Overton Park is authority here for the proposition that decisions to expend otherwise unrestricted funds are not, without more, subject to the notice-and-comment requirements of § 553. Although the Secretary's determination in Overton Park was subject to statutory criteria of" 'feasib[ility] and pruden[ce],'" id., at 405, the generality of those standards underscores the administrative discretion inherent in the determination (reviewable though it was), to which the Service's discretionary authority to meet its obligations under the Snyder and Improvement Acts is comparable. Indeed, respondents seek to distinguish Overton Park principally on the ground that the Service's determination altered the eligibility criteria for Service assistance. See Brief for Respondents 24-25. But the record fails to support the distinction, there being no indication that the Service's decision to discontinue the Program (or, for that matter, to initiate it) did anything to modify eligibility standards for Service care, as distinct from affecting the availability of services in a particular geographic area. The Service's decision to reallocate funds presumably did mean that respondents would no longer receive certain services, but it did not alter the Service's criteria for providing assistance any more than the199Service's initiation of the pilot project in 1978 altered the criteria for assistance to Indians in South Dakota.Nor, finally, do we think that the Court of Appeals was on solid ground in holding that Morton v. Ruiz, 415 U. S. 199 (1974), required the Service to abide by the AP A's noticeand-comment provisions before terminating the Program. Those provisions were not at issue in Ruiz, where respondents challenged a provision, contained in a Bureau of Indian Affairs manual, that restricted eligibility for Indian assistance. Although the Bureau's own regulations required it to publish the provision in the Federal Register, the Bureau had failed to do so. Id., at 233-234. We held that the Bureau's failure to abide by its own procedures rendered the provision invalid, stating that, under those circumstances, the denial of benefits would be "inconsistent with 'the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.'" Id., at 236 (quoting Seminole Nation v. United States, 316 U. S. 286, 296 (1942)). No such circumstances exist here.IVThe 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, 1992SyllabusLINCOLN, ACTING DIRECTOR, INDIAN HEALTH SERVICE, ET AL. v. VIGIL ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUITNo. 91-1833. Argued March 3, 1993-Decided May 24, 1993The Indian Health Service receives yearly lump-sum appropriations from Congress, and expends the funds under authority of the Snyder Act and the Indian Health Care Improvement Act to provide health care for American Indian and Alaska Native people. Out of these appropriations the Service funded, from 1978 to 1985, the Indian Children's Program (Program), which provided clinical services to handicapped Indian children in the Southwest. Congress never expressly authorized or appropriated funds for the Program but was apprised of its continuing operation. In 1985, the Service announced that it was discontinuing direct clinical services under the Program in order to establish a nationwide treatment program. Respondents, Indian children eligible to receive services under the Program, filed this action against petitioners (collectively, the Service), alleging, inter alia, that the decision to discontinue services violated the federal trust responsibility to Indians, the Snyder Act, the Improvement Act, the Administrative Procedure Act (APA), and the Fifth Amendment's Due Process Clause. In granting summary judgment for respondents, the District Court held that the Service's decision was subject to judicial review, rejecting the argument that the decision was "committed to agency discretion by law" under the APA, 5 U. S. C. § 701(a)(2). The court declined to address the merits of the Service's action, however, holding that the decision to discontinue the Program amounted to a "legislative rule" subject to the APA's notice-and-comment requirements, § 553, which the Service had not fulfilled. The Court of Appeals affirmed, holding that, even though no statute or regulation mentioned the Program, the repeated references to it in the legislative history of the annual appropriations Acts, in combination with the special relationship between Indian people and the Federal Government, provided a basis for judicial review. The court also reasoned that this Court's decision in Morton v. Ruiz, 415 U. S. 199, required the Service to abide by the APA's notice-andcomment procedures before cutting back on a congressionally created and funded program for Indians.183Held:1. The Service's decision to discontinue the Program was "committed to agency discretion by law" and therefore not subject to judicial review under § 701(a)(2). Pp. 190-195.(a) Section 701(a)(2) precludes review of certain categories of administrative decisions that courts traditionally have regarded as "committed to agency discretion." The allocation of funds from a lump-sum appropriation is such a decision. It is a fundamental principle of appropriations law that where Congress merely appropriates lump-sum amounts without statutory restriction, a clear inference may be drawn that it does not intend to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds should, or are expected to, be spent do not establish any legal requirements on the agency. As long as the agency allocates the funds to meet permissible statutory objectives, courts may not intrude under § 701(a)(2). Pp. 190-193.(b) The decision to terminate the Program was committed to the Service's discretion. The appropriations Acts do not mention the Program, and both the Snyder and Improvement Acts speak only in general terms about Indian health. The Service's representations to Congress about the Program's operation do not translate through the medium of legislative history into legally binding obligations, and reallocating resources to assist handicapped Indian children nationwide clearly falls within the Service's statutory mandate. In addition, whatever its contours, the special trust relationship existing between Indian people and the Federal Government cannot limit the Service's discretion to reorder its priorities from serving a subgroup of beneficiaries to serving the class of all Indians nationwide. Pp. 193-195.(c) Respondents' argument that the Program's termination violated their due process rights is left for the Court of Appeals to address on remand. While the APA contemplates that judicial review will be available for colorable constitutional claims absent a clear expression of contrary congressional intent, the record at this stage does not allow mature consideration of constitutional issues. P. 195.2. The Service was not required to abide by § 553's notice-andcomment rulemaking procedures before terminating the Program, even assuming that the statement terminating the Program would qualify as a "rule" within the meaning of the APA. Termination of the Program might be seen as affecting the Service's organization, but § 553(b)(A) exempts "rules of agency organization" from notice-and-comment requirements. Moreover, § 553(b)(A) exempts "general statements of policy," and, whatever else that term may cover, it surely includes an-184Full Text of Opinion

1993_92-1920

wage payments to discharged workers contradicts Labor Code § 219, which expressly and categorically prohibits the modification of rules under the Code by "private agreement." Even at face value, however, the "hands off" label poses special dangers that advantages conferred by federal law will be canceled out and its objectives undermined, and those dangers are not laid to rest by professions of the need for governmental neutrality in labor disputes. Similarly, the vague assertions that the policy advances federal interests are not persuasive, since this Court has never suggested that the federal bias toward bargaining is to be served by forcing employees and employers to bargain for what they would otherwise be entitled to under state law. Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, and the federal and state "opt-out" laws cited by the Commissioner, distinguished. Pp. 126-132.2. Livadas is entitled to seek relief under § 1983 for the Commissioner's abridgment of her NLRA right to complete the collectivebargaining process and agree to an arbitration clause. That right is at least immanent in the NLRA's structure, if it is not provided in so many words by the statutory text, and the obligation to respect it on the part of those acting under color of law is not vague or amorphous. Moreover, Congress has given no indication of any intent to foreclose actions like Livadas's, and there is no cause for special caution here. See Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 108-112. Pp. 132-135.987 F.2d 552, reversed.SOUTER, J., delivered the opinion for a unanimous Court.Richard G. McCracken argued the cause for petitioner.With him on the briefs was Michael T. Anderson.Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Deputy Solicitor General Wallace, Amy L. Wax, Linda Sher, and Norton J. Come.R. Thomas Cadell, Jr., argued the cause and filed a brief for respondent. **Briefs of amici curiae urging reversal were filed for the Allied Educational Foundation by Bertram R. Gelfand and Jeffrey C. Dannenberg; and for the American Federation of Labor and Congress of Industrial Organizations by Mark Schneider, Marsha S. Berzon, Laurence Gold, and Walter Kamiat.Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States et al. by Marshall B. Babson, Stanley110JUSTICE SOUTER delivered the opinion of the Court. California law requires employers to pay all wages due immediately upon an employee's discharge, imposes a penalty for refusal to pay promptly, precludes any private contractual waiver of these minimum labor standards, and places responsibility for enforcing these provisions on the State Commissioner of Labor (Commissioner or Labor Commissioner), ostensibly for the benefit of all employees. Respondent, the Labor Commissioner,l has construed a further provision of state law as barring enforcement of these wage and penalty claims on behalf of individuals like petitioner, whose terms and conditions of employment are governed by a collective-bargaining agreement containing an arbitration clause. We hold that federal law pre-empts this policy, as abridging the exercise of such employees' rights under the National Labor Relations Act (NLRA or Act), 29 U. S. C. § 151 et seq., and that redress for this unlawful refusal to enforce may be had under 42 U. S. C. § 1983.IUntil her discharge on January 2, 1990, petitioner Karen Livadas worked as a grocery clerk in a Vallejo, California, Safeway supermarket. The terms and conditions of her employment were subject to a collective-bargaining agreement between Safeway and Livadas's union, Local 373 of the United Food and Commercial Workers, AFL-CIO. Unexceptionally, the agreement provided that "[d]isputes as to the interpretation or application of the agreement," including grievances arising from allegedly unjust discharge or suspension, would be subject to binding arbitration. See FoodR. Strauss, Stephen A. Bokat, Mona C. Zeiberg, Jan Amundson, and Quentin Riegel; and for the Employers Group et al. by Steven G. Drapkin. 1 Respondent Bradshaw has succeeded Lloyd Aubry, the original named defendant in this action, as Labor Commissioner and has been substituted as a party before this Court. See this Court's Rule 35.3.111Store Contract, United Food & Commercial Workers Union, Local 373, AFL-CIO, Solano and Napa Counties §§ 18.2, 18.3 (Mar. 1, 1989-Feb. 29, 1992) (Food Store Contract).2 When notified of her discharge, Livadas demanded immediate payment of wages owed her, as guaranteed to all California workers by state law, see Cal. Lab. Code Ann. § 201 (West 1989),3 but her store manager refused, referring to the company practice of making such payments by check mailed from a central corporate payroll office. On January 5, 1990, Livadas received a check from Safeway, in the full amount owed for her work through January 2.On January 9, 1990, Livadas filed a claim against Safeway with the California Division of Labor Standards Enforcement (DLSE or Division), asserting that under § 203 of the Labor Code the company was liable to her for a sum equal to three days' wages, as a penalty for the delay between discharge and the date when payment was in fact re-2 Section 18.1 of the collective-bargaining agreement defines a "grievance" as a "dispute ... involving or arising out of the meaning, interpretation, application or alleged violation" of the agreement.Section 18.8 provides that "[i]n the case of a direct wage claim ... which does not involve an interpretation of any of the provisions of this Agreement, either party may submit such claim for settlement to either the grievance procedure provided for herein or to any other tribunal or agency which is authorized and empowered to effect such a settlement."3 California Labor Code § 201 provides in pertinent part: "If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately." It draws no distinction between union-represented employees and others.Under another provision of California law, Labor Code § 219, the protections of § 201 (and of other rules governing the frequency and form of wage payments) "can [not] in any way be contravened or set aside by private agreement, whether written, oral, or implied," although employers are free to pay wages more frequently, in greater amounts, or at an earlier date than ordained by these state rules; cf. § 204.2 (executive, administrative, and professional employees may negotiate through collective bargaining for pay periods different from those required by state law).112ceived.4 Livadas requested the Commissioner to enforce the claim.5By an apparently standard form letter dated February 7, 1990, the Division notified Livadas that it would take no action on her complaint:"It is our understanding that the employees working for Safeway are covered by a collective bargaining agreement which contains an arbitration clause. The provisions of Labor Code Section 229 preclude this Division from adjudicating any dispute concerning the interpretation or application of any collective bargaining agreement containing an arbitration clause."Labor Code Section 203 requires that the wages continue at the 'same rate' until paid. In order to establish what the 'same rate' was, it is necessary to look to the4 That section provides that when an employer "willfully fails" to comply with the strictures of § 201 and fails to pay "any wages" owed discharged employees, "the wages of such employees shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but such wages shall not continue for more than 30 days." Cal. Lab. Code Ann. § 203 (West 1989).In her DLSE claim form, Livadas made plain that she did not dispute Safeway's calculation of the wages owed, but sought only the penalty for the employer's late tender. App. 18.5 Under state law, the Commissioner of Labor is the Division Chief of the DLSE, see Cal. Lab. Code Ann. §§ 79, 82(b) (West 1989), and is authorized either directly to prosecute a wage or penalty claim on an employee's behalf in state court, § 98.3(a), or, in the alternative, to initiate informal hearings under DLSE auspices, see § 98(a), in which full relief may be awarded, § 98.1. The Commissioner's policy with respect to claims by employees covered by collective-bargaining agreements appears not to distinguish between these two modes of proceeding, and, accordingly, we will refer, as the parties largely do, to her policy as a categorical refusal to "enforce" such claims. Although Labor Code § 218 states that "[n]othing in this article shall limit the right of any wage claimant to sue ... for any wages or penalty due him," another provision, § 218.5, authorizes attorney's fee awards to prevailing parties in wage and penalty disputes, making individual litigation a somewhat risky prospect, and DLSE enforcement remains in any event the more realistic avenue for modest claims.113collective bargaining agreement and 'apply' that agreement. The courts have pointed out that such an application is exactly what the provisions of Labor Code § 229 prohibit." 6 App. 16.The letter made no reference to any particular aspect of Livadas's claim making it unfit for enforcement, and the Commissioner's position is fairly taken to be that DLSE enforcement of § 203 claims, as well as other claims for which relief is pegged to an employee's wage rate, is generally unavailable to employees covered by collective-bargaining agreements.7Livadas brought this action in the United States District Court under Rev. Stat. § 1979, 42 U. S. C. § 1983, alleging that the nonenforcement policy, reflecting the Commissioner's reading of Labor Code § 229, was pre-empted as conflicting with Livadas's rights under § 7 of the NLRA, 49 Stat. 452, as amended, 29 U. S. C. § 157, because the policy placed a6 Labor Code § 229 provides: "Actions to enforce the provisions of this article [Labor Code §§ 200-243] for the collection of due and unpaid wages claimed by an individual may be maintained without regard to the existence of any private agreement to arbitrate. This section shall not apply to claims involving any dispute concerning the interpretation or application of any collective bargaining agreement containing such an arbitration agreement." Cf. Perry v. Thomas, 482 U. S. 483 (1987) (§ 229 bar to waiver defeated by Federal Arbitration Act policy).All concerned identify the allusion to what "courts" have said to be a reference to a 1975 decision of the California Court of Appeal, Plumbing, Heating and Piping Employers Council v. Howard, 53 Cal. App. 3d 828, 126 Cal. Rptr. 406, where the Commissioner was held barred by the statute from enforcing an "unpaid" wage claim arising from an employee's assertion that he was entitled, under collective-bargaining agreements then in force, to receive a foreman's rate of pay and not a journeyman's.7The Commissioner notes that a small minority of collective-bargaining agreements lack provisions either setting wage rates or mandating arbitration (and therefore might potentially be enforced under the challenged policy). But see n. 13, infra; Lingle v. Norge Div. of Magic Chef, Inc., 486 U. S. 399, 411, n. 11 (1988) (noting that 99% of sampled collectivebargaining agreements include arbitration clauses).114penalty on the exercise of her statutory right to bargain collectively with her employer. She stressed that there was no dispute about the amount owed and that neither she nor Safeway had begun any grievance proceeding over the penalty.8 Livadas sought a declaration that the Commissioner's interpretation of § 229 was pre-empted, an injunction against adherence to the allegedly impermissible policy, and an order requiring the Commissioner either to process her penalty claim or (if it would be time barred under state law) pay her damages in the amount the Commissioner would have obtained if the Commissioner had moved against the employer in time.The District Court granted summary judgment for Livadas, holding the labor pre-emption claim cognizable under § 1983, see Golden State Transit Corp. v. Los Angeles, 493 U. S. 103 (1989) (Golden State II), and the Commissioner's policy pre-empted as interfering with her § 7 right, see, e. g., Golden State Transit Corp. v. Los Angeles, 475 U. S. 608 (1986) (Golden State I), by denying her the benefit of a minimum labor standard, namely, the right to timely payment of final wages secured by Labor Code §§201 and 203. 749 F. Supp. 1526 (ND Cal. 1990). The District Court treated as irrelevant the Commissioner's assertion that the policy was consistent with state law (e. g., Labor Code § 229) and rejected the defense that it was required by federal law, namely, §301 of the Labor-Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185(a), which has been read to pre-empt state-court resolution of disputes turning on the rights of parties under collective-bargaining agree-8 Livadas did file a grievance claiming that the discharge had been improper under the collective-bargaining agreement, ultimately obtaining reinstatement with backpay. While the parties dispute what effect, as a matter of state law, that recovery would have on Livadas's right under § 203, neither the pertinent California statutes nor the Commissioner's policy at issue here depend on whether a claimant's termination was for just cause.115ments. The District Court explained that resolution of the claim under § 203 "requires reference only to a calendar, not to the [collective-bargaining agreement]," 749 F. Supp., at 1536, and granted petitioner all requested relief. Id., at 1540.9A divided panel of the Court of Appeals for the Ninth Circuit reversed. 987 F.2d 552 (1993). The court acknowledged that federal law gives Livadas a right to engage in collective bargaining and that § 1983 would supply a remedy for official deprivation of that right, but the panel majority concluded that no federal right had been infringed. The court reasoned that the policy was based on the Commissioner's reading of Labor Code § 229, whose function of keeping state tribunals from adjudicating claims in a way that would interfere with the operation of federal labor policy is, by definition, consistent with the dictates of federal law. Noting that Livadas did not assert pre-emption of § 229 itself or object to the California courts' interpretation of it, the majority concluded that her case reduced to an assertion that the Commissioner had misinterpreted state law, an error for which relief could be obtained in California courts.Livadas could not claim to be "penalized," the Appeals panel then observed, for she stood "in the same position as every other employee in the state when it comes to seeking the Commissioner's enforcement. Every employee ... is subject to an eligibility determination, and every employee ... is subject to the risk that the Commissioner will get it wrong." 987 F. 2d, at 559. The Ninth Circuit majority concluded by invoking the "general policies of federal labor law" strongly favoring the arbitration of disputes and reasoning that, "Congress would not want state officials erring9 In the Court of Appeals, Livadas acknowledged that the portion of the District Court's order awarding monetary relief against the Commissioner in her official capacity was likely barred by the Eleventh Amendment, see Brief for Petitioner 43, n. 20. This and other issues arising from the scope of the remedy are better left for the courts below on remand.116on the side of adjudicating state law disputes whenever it is a close call as to whether a claim is preempted." Id., at 560.10 We granted certiorari, 510 U. S. 1083 (1994), to address the important questions of federal labor law implicated by the Commissioner's policy, and we now reverse.II AA state rule predicating benefits on refraining from conduct protected by federal labor law poses special dangers of interference with congressional purpose. In Nash v. Florida Industrial Comm'n, 389 U. S. 235 (1967), a unanimous Court held that a state policy of withholding unemployment benefits solely because an employee had filed an unfair labor practice charge with the National Labor Relations Board had a "direct tendency to frustrate the purpose of Congress" and, if not pre-empted, would "defeat or handicap a valid national objective by ... withdraw[ing] state benefits ... simply because" an employee engages in conduct protected10 In dissent, Judge Kozinski countered that by focusing on whether Livadas was entitled to a correct application of state law, the majority had explored the wrong question. The proper enquiry, the dissent maintained, was not whether the Commissioner has discretion under state law not to enforce wage and penalty claims (which she plainly does) or whether she need enforce claims if doing so would actually be pre-empted by federal law (she plainly need not), but whether she may draw the line for enforcement purposes between individuals covered by collectivebargaining agreements containing arbitration clauses (whose claims will sometimes but not always be pre-empted under § 301) and those not so covered. Underscoring that Livadas's claim would not, in fact, have been pre-empted had the federal rule been given its proper scope, the dissent found wanting the majority's "quasi-pre-emption" rationale, 987 F. 2d, at 562. Judge Kozinski concluded that the Commissioner's policy, based on an "honest (though flagrant) mistake of law," id., at 563, could not be squared with the requirements of federal labor law, because the burdened class was defined by the exercise of federal rights and because the burden on collective-bargaining rights, justified only by a mistaken understanding of what § 301 requires, served no "legitimate state purpose" at all. Ibid.117and encouraged by the NLRA. Id., at 239; see also Golden State I, supra, at 618 (city may not condition franchise renewal on settlement of labor dispute). This case is fundamentally no different from NashY Just as the respondent state commission in that case offered an employee the choice of pursuing her unfair labor practice claim or receiving unemployment compensation, the Commissioner has presented Livadas and others like her with the choice of having statelaw rights under §§ 201 and 203 enforced or exercising the right to enter into a collective-bargaining agreement with an arbitration clause. This unappetizing choice, we conclude, was not intended by Congress, see infra, at 130, and cannot ultimately be reconciled with a statutory scheme premised on the centrality of the right to bargain collectively and the desirability of resolving contract disputes through arbitra-11 While the NLRA does not expressly recognize a right to be covered by a collective-bargaining agreement, in that no duty is imposed on an employer actually to reach agreement with represented employees, see 29 U. S. C. § 158(d), a State's penalty on those who complete the collectivebargaining process works an interference with the operation of the Act, much as does a penalty on those who participate in the process. Cf. Hill v. Florida ex rel. Watson, 325 U. S. 538 (1945) (State may not enforce licensing requirement on collective-bargaining agents).We understand the difference between the position of petitioner (who would place this case within our "Machinists" line of labor pre-emption cases, see Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S. 132 (1976)) and that of her amicus, the Solicitor General (who describes it as a case of "conflict" pre-emption, see Brief for United States as Amicus Curiae 14-15, and n. 4) to be entirely semantic, depending on whether Livadas's right is characterized as implicit in the structure of the Act (as was the right to self-help upheld in Machinists) or as rooted in the text of § 7. See generally Golden State II, 493 U. S. 103, 110-112 (1989) (emphasizing fundamental similarity between enumerated NLRA rights and "Machinists" rights). Neither party here argues for application of the rule of San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), which safeguards the primary jurisdiction of the National Labor Relations Board to pass judgment on certain conduct, such as labor picketing, which might be held protected by § 7 of the Act but which might also be prohibited by § 8 of the Act.118tion. Cf. Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 755 (1985) (state law held not pre-empted because it "neither encourage[s] nor discourage[s] the collectivebargaining processes") .12B 1The Commissioner's answers to this pre-emption conclusion flow from two significant misunderstandings of law. First, the Commissioner conflates the policy that Livadas challenges with the state law on which it purports to rest, Labor Code § 229, assuming that if the statutory provision is consistent with federal law, her policy must be also. But12 Despite certain similarities, the question whether federal labor law permits a State to grant or withhold unemployment insurance benefits from striking workers requires consideration of the policies underlying a distinct federal statute, Title IX of the Social Security Act, see 26 U. S. C. § 3301 (1988 ed. and Supp. IV); 42 u. S. C. § 501 et seq.; 42 U. S. C. § 1101 et seq. Thus, straightforward NLRA pre-emption analysis has been held inappropriate. See New York Telephone Co. v. New York State Dept. of Labor, 440 U. S. 519, 536-540 (1979) (plurality opinion); see also id., at 549 (BLACKMUN, J., concurring in judgment).Noting that Nash v. Florida Industrial Comm'n, 389 U. S. 235 (1967), held state action pre-empted that was "like the coercive actions which employers and unions are forbidden to engage in," see id., at 239, it is argued here, see Brief for Employers Group as Amicus Curiae 7-12, that the NLRA prohibits only state action closely analogous to conduct that would support an unfair labor practice charge if engaged in by a private employer. Our cases, however, teach that parallelism is not dispositive and that the Act sometimes demands a more scrupulous evenhandedness from the States. See generally Wisconsin Dept. of Industry v. Gould, Inc., 475 U. S. 282, 290 (1986) (State may not debar employers with multiple NLRA violations from government contracting); compare Golden State I, 475 U. S. 608 (1986), with NLRB v. Servette, Inc., 377 U. S. 46, 49-54 (1964) (private actor may refuse to deal with employer based on impending strike); but cf. Building & Constr. Trades Council v. Associated Builders & Contractors of Mass. fR. I., Inc., 507 U. S. 218, 227228 (1993) (the Act does not always preclude a State, functioning as an employer or a purchaser of labor services, from behaving as a private employer would be entitled to do).119on this logic, a policy of issuing general search warrants would be justified if it were adopted to implement a state statute codifying word-for-word the "good-faith" exception to the valid warrant requirement recognized in United States v. Leon, 468 U. S. 897 (1984). The relationship between policy and state statute and between the statute and federal law is, in any event, irrelevant. The question presented by this case is not whether Labor Code § 229 is valid under the Federal Constitution or whether the Commissioner's policy is, as a matter of state law, a proper interpretation of § 229. Pre-emption analysis, rather, turns on the actual content of respondent's policy and its real effect on federal rights. See Nash v. Florida Industrial Comm'n, 389 U. S. 235 (1967) (holding pre-empted an administrative policy interpreting presumably valid state unemployment insurance law exception for "labor disputes" to include proceedings under NLRB complaints); see also 987 F. 2d, at 561 (Kozinski, J., dissenting).13Having sought to lead us to the wrong question, the Commissioner proposes the wrong approach for answering it, defending the distinction drawn in the challenged statutory interpretation, between employees represented by unions and those who are not, as supported by a "rational basis," see,13 See also Rum Creek Coal Sales, Inc. v. Caperton, 971 F.2d 1148, 1154 (CA4 1992) (State may not, consistently with the NLRA, withhold protections of state antitrespass law from employer involved in labor dispute, in an effort to apply a facially valid "neutrality statute"). Thus, while the "misinterpretation of a perfectly valid state statute ... does not [in itself] provide grounds for federal relief," 987 F. 2d, at 559, it does not follow that no federal relief may be had when such misinterpretation results in conflict with federal law. Nor does the opportunity to seek redress in a nonfederal forum determine the existence of a federal right, see ibid. See, e. g., Monroe v. Pape, 365 U. S. 167, 183 (1961). Of course, the extent to which a course of conduct has deviated from "clearly established" federal law remains crucial to deciding whether an official will be entitled to immunity from individual damage liability, see, e. g., Davis v. Scherer, 468 U. S. 183, 197 (1984).120e. g., Brief for Respondent 17. But such reasoning mistakes a standard for validity under the Equal Protection and Due Process Clauses for what the Supremacy Clause requires. The power to tax is no less the power to destroy, McCulloch v. Maryland, 4 Wheat. 316 (1819), merely because a state legislature has an undoubtedly rational and "legitimate" interest in raising revenue. In labor pre-emption cases, as in others under the Supremacy Clause, our office is not to pass judgment on the reasonableness of state policy, see, e. g., Golden State I, 475 U. S. 608 (1986) (city's desire to remain "neutral" in labor dispute does not determine pre-emption). It is instead to decide if a state rule conflicts with or otherwise "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of the federal law. Brown v. Hotel Employees, 468 U. S. 491, 501 (1984) (internal quotation marks and citation omitted).14That is not to say, of course, that the several rationales for the policy urged on the Court by the Commissioner and amici are beside the point here. If, most obviously, the Commissioner's policy were actually compelled by federal law, as she argues it is, we could hardly say that it was, simultaneously, pre-empted; at the least, our task would then be one of harmonizing statutory law. But we entertain this and other justifications claimed, not because constitutional analysis under the Supremacy Clause is an open-ended balancing act, simply weighing the federal interest against the intensity of local feeling, see id., at 503, but because claims of justification can sometimes help us to discern congressional purpose, the "ultimate touchstone" of our enquiry. Malone14 Similarly, because our analysis here turns not on the "rationality" of the governmental classification, but rather on its effect on federal objectives, the Commissioner's policy is not saved merely because it happens, at the margins, to be "under-" and "over-inclusive," i. e., burdening certain employees who are not protected by the NLRA and allowing employees covered by highly unusual collective-bargaining agreements the benefit of enforcement of §§ 201 and 203 claims.121v. White Motor Corp., 435 U. S. 497, 504 (1978) (internal quotation marks and citation omitted); see also New York Telephone Co. v. New York State Dept. of Labor, 440 U. S. 519, 533 (1979) (plurality opinion).2We begin with the most complete of the defenses mounted by the Commissioner, one that seems (or seemed until recently, at least) to be at the heart of her position: that the challenged policy, far from being pre-empted by federal law, is positively compelled by it, and that even if the Commissioner had been so inclined, the LMRA § 301 would have precluded enforcement of Livadas's penalty claim. The nonenforcement policy, she suggests, is a necessary emanation from this Court's § 301 pre-emption jurisprudence, marked as it has been by repeated admonitions that courts should steer clear of collective-bargaining disputes between parties who have provided for arbitration. See, e. g., AllisChalmers Corp. v. Lueck, 471 U. S. 202 (1985). Because, this argument runs (and Livadas was told in the DLSE no-action letter), disposition of a union-represented employee's penalty claim entails the "interpretation or application" of a collective-bargaining agreement (since determining the amount owed turns on the contractual rate of pay agreed) resort to a state tribunal would lead it into territory that Congress, in enacting § 301, meant to be covered exclusively by arbitrators.This reasoning, however, mistakes both the functions § 301 serves in our national labor law and our prior decisions according that provision pre-emptive effect. To be sure, we have read the text of § 30115 not only to grant federal courts jurisdiction over claims asserting breach of collective-15 Section 301 states that "[sJuits for violation of contracts between an employer and a labor organization representing employees ... may be brought in any district court of the United States having jurisdiction of the parties .... " 29 U. S. C. § 185(a).122bargaining agreements but also to authorize the development of federal common-law rules of decision, in large part to assure that agreements to arbitrate grievances would be enforced, regardless of the vagaries of state law and lingering hostility toward extrajudicial dispute resolution, see Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 455-456 (1957); see also Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574 (1960); Avco Corp. v. Machinists, 390 U. S. 557, 559 (1968) ("§ 301 ... was fashioned by Congress to place sanctions behind agreements to arbitrate grievance disputes"). And in Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962), we recognized an important corollary to the Lincoln Mills rule: while § 301 does not preclude state courts from taking jurisdiction over cases arising from disputes over the interpretation of collective-bargaining agreements, state contract law must yield to the developing federal common law, lest common terms in bargaining agreements be given different and potentially inconsistent interpretations in different jurisdictions. See 369 U. S., at 103-104.16And while this sensible "acorn" of § 301 pre-emption recognized in Lucas Flour has sprouted modestly in more recent decisions of this Court, see, e. g., Lueck, supra, at 210 ("[I]f the policies that animate § 301 are to be given their proper range ... the pre-emptive effect of § 301 must extend beyond suits alleging contract violations"), it has not yet become, nor may it, a sufficiently "mighty oak," see Golden State I, 475 U. S., at 622 (REHNQUIST, J., dissenting), to supply the cover the Commissioner seeks here. To the contrary, the pre-emption rule has been applied only to assure that the16 Within its proper sphere, §301 has been accorded unusual pre-emptive power. In Avco Corp. v. Machinists, 390 U. S. 557 (1968), for example, we recognized that an action for breach of a collective-bargaining agreement "ar[ose] under" § 301 (and therefore was subject to federal removal, see 28 U. S. C. § 1441 (1988 ed. and Supp. IV)), despite the fact that the petitioner's complaint did not mention the federal provision and appeared to plead an adequate claim for relief under state contract law.123purposes animating § 301 will be frustrated neither by state laws purporting to determine "questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement," Lueck, 471 U. S., at 211, nor by parties' efforts to renege on their arbitration promises by "relabeling" as tort suits actions simply alleging breaches of duties assumed in collective-bargaining agreements, id., at 219; see Republic Steel Corp. v. Maddox, 379 U. S. 650, 652 (1965) ("[F]ederal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress") (emphasis deleted).In Lueck and in Lingle v. Norge Div. of Magic Chef, Inc., 486 U. S. 399 (1988), we underscored the point that § 301 cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law,17 and we stressed that it is the legal character of a claim, as "independent" of rights under the collective-bargaining agreement, Lueck, supra, at 213 (and not whether a grievance arising from "precisely the same set of facts" could be pursued, Lingle, supra, at 410) that decides whether a state17 That is so, we explained, both because Congress is understood to have legislated against a backdrop of generally applicable labor standards, see, e. g., Lingle, 486 U. S., at 411-412, and because the scope of the arbitral promise is not itself unlimited, see Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960) ("[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit"). And while contract-interpretation disputes must be resolved in the bargained-for arbitral realm, see Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), § 301 does not disable state courts from interpreting the terms of collective-bargaining agreements in resolving non-pre-empted claims, see Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962) (state courts have jurisdiction over § 301 suits but must apply federal common law); NLRB v. C & C Plywood Corp., 385 U. S. 421 (1967).124cause of action may go forward.18 Finally, we were clear that when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished, see Lingle, supra, at 413, n. 12 ("A collective-bargaining agreement may, of course, contain information such as rate of pay ... that might be helpful in determining the damages to which a worker prevailing in a state-law suit is entitled").These principles foreclose even a colorable argument that a claim under Labor Code § 203 was pre-empted here. As the District Court aptly observed, the primary text for deciding whether Livadas was entitled to a penalty was not the Food Store Contract, but a calendar. The only issue raised by Livadas's claim, whether Safeway "willfully fail[ed] to pay" her wages promptly upon severance, Cal. Lab. Code18We are aware, as an amicus brief makes clear, see Brief for AFL-CIO as Amicus Curiae, that the Courts of Appeals have not been entirely uniform in their understanding and application of the principles set down in Lingle and Lueck. But this case, in which non-pre-emption under § 301 is clear beyond peradventure, see infra this page and 125, is not a fit occasion for us to resolve disagreements that have arisen over the proper scope of our earlier decisions. We do note in this regard that while our cases tend to speak broadly in terms of § 301 "pre-emption," defendants invoke that provision in diverse situations and for different reasons: sometimes their assertion is that a plaintiff's cause of action itself derives from the collective-bargaining agreement (and, by that agreement, belongs before an arbitrator); in other instances, the argument is different, that a plaintiff's claim cannot be "resolved" absent collective-bargaining agreement interpretation, i. e., that a term of the agreement mayor does confer a defense on the employer (perhaps because the employee or his union has negotiated away the state-law right), cf. Caterpillar Inc. v. Williams, 482 U. S. 386, 398-399 (1987); and in other cases still, concededly "independent" state-law litigation may nonetheless entail some collective-bargaining agreement application. Holding the plaintiff's cause of action substantively extinguished may not, as amicus AFL-CIO observes, always be the only means of vindicating the arbitrator's primacy as the bargained-for contract interpreter. Cf. Collyer Insulated Wire, Gulf & Western Systems Co., 192 N. L. R. B. 837 (1971).125Ann. § 203 (West 1989), was a question of state law, entirely independent of any understanding embodied in the collective-bargaining agreement between the union and the employer. There is no indication that there was a "dispute" in this case over the amount of the penalty to which Livadas would be entitled, and Lingle makes plain in so many words that when liability is governed by independent state law, the mere need to "look to" the collective-bargaining agreement for damages computation is no reason to hold the state-law claim defeated by § 301. See 486 U. S., at 413, n. 12.19Beyond the simple need to refer to bargained-for wage rates in computing the penalty, the collective-bargaining agreement is irrelevant to the dispute (if any) between Livadas and Safeway. There is no suggestion here that Livadas's union sought or purported to bargain away her protections under § 201 or § 203, a waiver that we have said would (especially in view of Labor Code § 219) have to be "'clear and unmistakable,'" see Lingle, supra, at 409-410, n. 9 (quoting Metropolitan Edison Co. v. NLRB, 460 U. S. 693, 708 (1983)), for a court even to consider whether it could be given effect, nor is there any indication that the parties to the collective-bargaining agreement understood their arbitration pledge to cover these state-law claims. See generally Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 35 (1991); cf. Food Store Contract § 18.8. But even if such suggestions or indications were to be found, the Commissioner could not invoke them to defend her policy, which makes no effort to take such factors into account before denying enforcement.2o19 This is not to say, of course, that a § 203 penalty claim could never be pre-empted by § 301.20 In holding the challenged policy pre-empted, we note that there is no equally obvious conflict between what § 301 requires and the text of Labor Code § 229 (as against what respondent has read it to mean). The California provision, which concerns whether a promise to arbitrate a claim will be enforced to defeat a direct action under the Labor Code, does not purport generally to deny union-represented employees their rights under §§ 201 and 203. Rather, it confines its preclusive focus only to "dispute[s]126C 1Before this Court, however, the Commissioner does not confine herself to the assertion that Livadas's claim would have been pre-empted by LMRA § 301. Indeed, largely putting aside that position, she has sought here to cast the policy in different terms, as expressing a "conscious decision," see Brief for Respondent 14, to keep the State's "hands off" the claims of employees protected by collective-bargaining agreements, either because the Division's efforts and resources are more urgently needed by others or because official restraint will actually encourage the collectivebargaining and arbitral processes favored by federal law. The latter, more ambitious defense has been vigorously taken up by the Commissioner's amici, who warn that invalidation of the disputed policy would sound the death knell for other, more common governmental measures that take account of collective-bargaining processes or treat workers represented by unions differently from others in any respect.Although there surely is no bar to our considering these alternative explanations, cf. Dandridge v. Williams, 397 U. S. 471, 475, n. 6 (1970) (party may defend judgment on basis not relied upon below), we note, as is often the case with such late-blooming rationales, that the overlap between what the Commissioner now claims to be state policy and what the state legislature has enacted into law is awkwardly inexact. First, if the Commissioner's policy (or Californiaconcerning the interpretation or application of any collective-bargaining agreement," in which event an "agreement to arbitrate" such disputes is to be given effect. Nor does the Howard decision, the apparent font of the Commissioner's policy, appear untrue to § 301 teachings: there, an employee sought to have an "unpaid wage" claim do the office of a claim that a collective-bargaining agreement entitled him to a higher wage; that sort of claim, however, derives its existence from the collective-bargaining agreement and, accordingly, falls within any customary understanding of arbitral jurisdiction. See 53 Cal. App. 3d, at 836, 126 Cal. Rptr., at 411.127law) were animated simply by the frugal desire to conserve the State's money for the protection of employees not covered by collective-bargaining agreements, the Commissioner's emphasis, in the letter to Livadas and in this litigation, on the need to "interpret" or "apply" terms of a collectivebargaining agreement would be entirely misplaced.Nor is the nonenforcement policy convincingly defended as giving parties to a collective-bargaining agreement the "benefit of their bargain," see Brief for Respondent 18, n. 13, by assuring them that their promise to arbitrate is kept and not circumvented. Under the Commissioner's policy, enforcement does not turn on what disputes the parties agreed would be resolved by arbitration (the bargain struck), see Gilmer, 500 U. S., at 26, or on whether the contractual wage rate is even subject to (arbitrable) dispute. Rather, enforcement turns exclusively on the fact that the contracting parties consented to any arbitration at all. Even if the Commissioner could permissibly presume that state-law claims are generally intended to be arbitrated, but cf. id., at 35 (employees in prior cases "had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims"),21 her policy goes still further. Even in cases when it could be said with "positive assurance,"21 In holding that an agreement to arbitrate an Age Discrimination in Employment Act claim is enforceable under the Federal Arbitration Act, Gilmer emphasized its basic consistency with our unanimous decision in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), permitting a discharged employee to bring a Title VII claim, notwithstanding his having already grieved the dismissal under a collective-bargaining agreement. Gilmer distinguished Gardner-Denver as relying, inter alia, on: the "distinctly separate nature of ... contractual and statutory rights" (even when both were "violated as a result of the same factual occurrence"), 415 U. S., at 50; the fact that a labor "arbitrator has authority to resolve only questions of contractual rights," id., at 53-54; and the concern that in collective-bargaining arbitration, "the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit," id., at 58, n. 19.128Warrior & Gulf, 363 U. S., at 582, that the parties did not intend that state-law claims be subject to arbitration, cf. Food Store Contract § 18.8 (direct wage claim not involving interpretation of agreement may be submitted "to any other tribunal or agency which is authorized and empowered" to enforce it), the Commissioner would still deny enforcement, on the stated basis that the collective-bargaining agreement nonetheless contained "an arbitration clause" and because the claim would, on her view, entail "interpretation," of the agreement's terms. Such an irrebuttable presumption is not easily described as the benefit of the parties' "bargain."The Commissioner and amici finally suggest that denying enforcement to union-represented employees' claims under §§ 201 and 203 (and other Labor Code provisions) is meant to encourage parties to bargain collectively for their own rules about the payment of wages to discharged workers. But with this suggestion, the State's position simply slips any tether to California law. If California's goal really were to stimulate such freewheeling bargaining on these subjects, the enactment of Labor Code § 219, expressly and categorically prohibiting the modification of these Labor Code rules by "private agreement," would be a very odd way to pursue it.22 Cf. Cal. Lab. Code Ann. § 227.3 (West 1989) (allowing parties to collective-bargaining agreement to arrive at different rule for vacation pay). In short, the policy, the rationales, and the state law are not coherent.2Even at face value, however, neither the "hands off" labels nor the vague assertions that general labor law policies are thereby advanced much support the Commissioner's defense here. The former merely takes the position discussed and rejected earlier, that a distinction between claimants represented by unions and those who are not is "rational," the22 The Commissioner avoids such complications simply by omitting any reference to Labor Code § 219.129former being less "in need" than the latter. While we hardly suggest here that every distinction between unionrepresented employees and others is invalid under the NLRA, see infra, at 131-132, the assertion that represented employees are less "in need" precisely because they have exercised federal rights poses special dangers that advantages conferred by federal law will be canceled out and its objectives undermined. Cf. Metropolitan Life, 471 U. S., at 756 ("It would turn the policy that animated the Wagner Act on its head to understand it to have penalized workers who have chosen to join a union by preventing them from benefiting from state labor regulations imposing minimal standards on nonunion employers"). Accordingly, as we observed in Metropolitan Life, the widespread practice in Congress and in state legislatures has assumed the contrary, bestowing basic employment guarantees and protections on individual employees without singling out members of labor unions (or those represented by them) for disability; see id., at 755; 23 accord, Lingle, 486 U. S., at 411-412.Nor do professions of "neutrality" lay the dangers to rest.The pre-empted action in Golden State I could easily have been redescribed as following a "hands-off" policy, in that the city sought to avoid endorsing either side in the course of a labor dispute, see 475 U. S., at 622 (REHNQUIST, J., dissenting) (city did not seek "to place its weight on one side or the other of the scales of economic warfare"), and the respondent commission in Nash may have understood its policy as expressing neutrality between the parties in a yet-to-be-23We noted that "Congress [has never] seen fit to exclude unionized workers and employers from laws establishing federal minimum employment standards. We see no reason to believe that for this purpose Congress intended state minimum labor standards to be treated differently .... Minimum state labor standards affect union and nonunion employees equally and neither encourage nor discourage the collectivebargaining processes that are the subject of the NLRA." Metropolitan Life, 471 U. S., at 755.130decided unfair labor practice dispute. See also Rum Creek Coal Sales, Inc. v. Caperton, 971 F.2d 1148, 1154 (CA4 1992) (NLRA forbids state policy, under state law barring "aid or assistance" to either party to a labor dispute, of not arresting picketers who violated state trespass laws). Nor need we pause long over the assertion that nonenforcement of valid state-law claims is consistent with federal labor law by "encouraging" the operation of collective bargaining and arbitration process. Denying represented employees basic safety protections might "encourage" collective bargaining over that subject, and denying union employers the protection of generally applicable state trespass law might lead to increased bargaining over the rights of labor pickets, cf. Rum Creek, supra, but we have never suggested that labor law's bias toward bargaining is to be served by forcing employees or employers to bargain for what they would otherwise be entitled to as a matter of course. See generally Metropolitan Life, supra, at 757 (Congress did not intend to "remove the backdrop of state law ... and thereby artificially create a no-law area") (emphasis deleted and internal quotation marks omitted).24The precedent cited by the Commissioner and amici as supporting the broadest "hands off" view, Fort Halifax Packing Co. v. Coyne, 482 U. S. 1 (1987), is not in point. In that case we held that there was no federal pre-emption of a Maine statute that allowed employees and employers to contract for plant-closing severance payments different from those otherwise mandated by state law. That decision, however, does not even purport to address the question supposedly presented here: while there was mention of state lati-24 Were it enough simply to point to a general labor policy advanced by particular state action, the city in Golden State could have claimed to be encouraging the "friendly adjustment of industrial disputes," 29 U. S. C. § 151, and the State in Gould, the entirely "laudable," 475 U. S., at 291, purpose of "deter[ring] labor law violations and ... reward[ing] 'fidelity to the law,'" id., at 287.131tude to "balance the desirability of a particular substantive labor standard against the right of self-determination regarding the terms and conditions of employment," see id., at 22, the policy challenged here differs in two crucial respects from the "unexceptional exercise of the [State's] police power," ibid. (internal quotation marks and citation omitted), defended in those terms in our earlier case. Most fundamentally, the Maine law treated all employees equally, whether or not represented by a labor organization. All were entitled to the statutory severance payment, and all were allowed to negotiate agreements providing for different benefits. See id., at 4, n. 1. Second, the minimum protections of Maine's plant-closing law were relinquished not by the mere act of signing an employment contract (or collective-bargaining agreement), but only by the parties' express agreement on different terms, see id., at 21.25While the Commissioner and her amici call our attention to a number of state and federal laws that draw distinctions between union and nonunion represented employees, see, e. g., D. C. Code Ann. §36-103 (1993) ("Unless otherwise specified in a collective agreement ... [w]henever an employer discharges an employee, the employer shall pay the employee's wages earned not later than the working day following such discharge"); 29 U. S. C. § 203(0) ("Hours [w]orked" for Fair Labor Standards Act measured according to "express terms of ... or practice under bona fide collective-bargaining agreement"), virtually all share the important second feature observed in Coyne, that unionrepresented employees have the full protection of the minimum standard, absent any agreement for something different. These "opt out" statutes are thus manifestly different in their operation (and their effect on federal rights)25 It bears mention that the law in Fort Halifax pegged the benefit payment to an employee's wages, meaning that the State Labor Commissioner would "look to" the collective-bargaining agreement in enforcing claims in precisely the same manner that respondent would here.132from the Commissioner's rule that an employee forfeits his state-law rights the moment a collective-bargaining agreement with an arbitration clause is entered into. But cf. Metropolitan Edison, 460 U. S., at 708. Hence, our holding that the Commissioner's unusual policy is irreconcilable with the structure and purposes of the Act should cast no shadow on the validity of these familiar and narrowly drawn opt-out provisions.26IIIHaving determined that the Commissioner's policy is in fact pre-empted by federal law, we find strong support in our precedents for the position taken by both courts below that Livadas is entitled to seek relief under 42 U. S. C. § 1983 for the Commissioner's abridgment of her NLRA rights. Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen's "rights, privileges, or immunities secured by the Constitution and laws" of the United States, and we have given that provision the effect its terms require, as affording redress for violations of federal statutes, as well as of constitutional norms. Maine v. Thiboutot, 448 U. S. 1, 4 (1980). We have, it is true, recognized that even the broad statutory text does not authorize a suit for every alleged violation of federal law. A particular statutory provision, for example, may be so manifestly precatory that it could not fairly be read to impose a "binding obligatio[n]" on a governmental unit, Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 27 (1981), or its terms may be so "vague and amorphous" that determining whether a "deprivation" might have occurred would strain judicial competence. See Wright v. Roanoke Redevelop-26 Nor does it seem plausible to suggest that Congress meant to preempt such opt-out laws, as "burdening" the statutory right of employees not to join unions by denying nonrepresented employees the "benefit" of being able to "contract out" of such standards. Cf. Addendum B to Brief for Employers Group as Amicus Curiae (collecting state statutes containing similar provisions).133ment and Housing Authority, 479 U. S. 418, 431-432 (1987). And Congress itself might make it clear that violation of a statute will not give rise to liability under § 1983, either by express words or by providing a comprehensive alternative enforcement scheme. See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 (1981). But apart from these exceptional cases, § 1983 remains a generally and presumptively available remedy for claimed violations of federal law. See also Dennis v. Higgins, 498 U. S. 439, 443 (1991).Our conclusion that Livadas is entitled to seek redress under § 1983 is, if not controlled outright, at least heavily foreshadowed by our decision in Golden State II. We began there with the recognition that not every instance of federal pre-emption gives rise to a § 1983 cause of action, see 493 U. S., at 108, and we explained that to decide the availability of § 1983 relief a court must look to the nature of the federal law accorded pre-emptive effect and the character of the interest claimed under it, ibid.27 We had no difficulty concluding, however, as we had often before, see, e. g., Hill v. Florida ex rel. Watson, 325 U. S. 538 (1945), that the NLRA protects interests of employees and employers against abridgment by a State, as well as by private actors; that the obligations it imposes on governmental actors are not so "vague and amorphous" as to exceed judicial competence to decide; and that Congress had not meant to foreclose relief under § 1983. In so concluding, we contrasted the intricate scheme provided to remedy violations by private actors to the complete absence of provision for relief from governmen-27 Thus, Golden State II observed that an NLRA pre-emption claim grounded in the need to vindicate the primary jurisdiction of the National Labor Relations Board, see San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), see n. 10, supra, is "fundamentally different" from one stemming from state abridgment of a protected individual interest, see 493 U. S., at 110, a difference that might prove relevant to cognizability under § 1983.134tal interference, see 493 U. S., at 108-109. Indeed, the only issue seriously in dispute in Golden State II was whether the freedom to resort to "peaceful methods of ... economic pressure," id., at 112 (internal quotation marks omitted), which we had recognized as implicit in the structure of the Act, could support § 1983 liability in the same manner as official abridgment of those rights enumerated in the text would do. Ibid. The Court majority said yes, explaining that "[a] rule of law that is the product of judicial interpretation of a vague, ambiguous, or incomplete statutory provision is no less binding than a rule that is based on the plain meaning of a statute." Ibid.The right Livadas asserts, to complete the collectivebargaining process and agree to an arbitration clause, is, if not provided in so many words in the NLRA, see n. 10, supra, at least as immanent in its structure as the right of the cab company in Golden State II. And the obligation to respect it on the part of the Commissioner and others acting under color of law is no more "vague and amorphous" than the obligation in Golden State. Congress, of course, has given no more indication of any intent to foreclose actions like Livadas's than the sort brought by the cab company. Finding no cause for special caution here, we hold that Livadas's claim is properly brought under § 1983.IVIn an effort to give wide berth to federal labor law and policy, the Commissioner declines to enforce unionrepresented employees' claims rooted in nonwaivable rights ostensibly secured by state law to all employees, without regard to whether the claims are valid under state law or preempted by LMRA § 301. Federal labor law does not require such a heavy-handed policy, and, indeed, cannot permit it. We do not suggest here that the NLRA automatically defeats all state action taking any account of the collectivebargaining process or every state law distinguishing union-135represented employees from others. It is enough that we find the Commissioner's policy to have such direct and detrimental effects on the federal statutory rights of employees that it must be pre-empted. The judgment of the Court of Appeals for the Ninth Circuit is accordinglyReversed

OCTOBER TERM, 1993SyllabusLIVADAS v. BRADSHAW, CALIFORNIA LABOR COMMISSIONERCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 92-1920. Argued April 26, 1994-Decided June 13, 1994California law requires employers to pay all wages due immediately upon an employee's discharge, Labor Code § 201; imposes a penalty for refusal to pay promptly, § 203; and places responsibility for enforcing these provisions on the Commissioner of Labor. After petitioner Livadas's employer refused to pay her the wages owed upon her discharge, but paid them a few days later, she filed a penalty claim. The Commissioner replied with a form letter construing Labor Code § 229 as barring him from enforcing such claims on behalf of individuals like Livadas, whose employment terms and conditions are governed by a collectivebargaining agreement containing an arbitration clause. Livadas brought this action under 42 U. S. C. § 1983, alleging that the nonenforcement policy was pre-empted by federal law because it abridged her rights under the National Labor Relations Act (NLRA). The District Court granted her summary judgment, rejecting the Commissioner's defense that the claim was pre-empted by § 301 of the LaborManagement Relations Act, 1947 (LMRA). Although acknowledging that the NLRA gives Livadas a right to bargain collectively and that § 1983 would supply a remedy for official deprivation of that right, the Court of Appeals reversed, concluding that no federal right had been infringed because Livadas's case reduced to an assertion that the Commissioner had misinterpreted state law, namely § 229.Held:1. The Commissioner's policy is pre-empted by federal law.Pp. 116-132.(a) This case is fundamentally no different from Nash v. Florida Industrial Comm'n, 389 U. S. 235, 239, in which the Court held that a state rule predicating benefits on refraining from conduct protected by federal labor law was pre-empted because it interfered with congressional purpose. The Commissioner's policy, which requires Livadas to choose between Labor Code and NLRA rights, cannot be reconciled with a federal statutory scheme premised on the centrality of collective bargaining and the desirability of arbitration. Pp. 116-118.(b) The Commissioner's answers to the foregoing conclusion flow from two significant misunderstandings of law. First, the assertion that the nonenforcement policy must be valid because § 229 is consistent108Syllabuswith federal law is premised on irrelevant relationships and leads to the wrong question: Pre-emption analysis turns on the policy's actual content and its real effect on federal rights, not on whether § 229 is valid under the Federal Constitution or whether the policy is, as a matter of state law, a proper interpretation of § 229. Second, the argument that a "rational basis" supports the distinction the policy draws between employees represented by unions and those who are not mistakes a validity standard under the Equal Protection and Due Process Clauses for what the Supremacy Clause requires: a determination whether the state rule conflicts with the federal law. Pp. 118-121.(c) This Court's decisions according pre-emptive effect to LMRA § 301 foreclose even a colorable argument that a claim under Labor Code § 203 was pre-empted here, since they establish that the section does not broadly pre-empt nonnegotiable employee rights conferred by state law; that it is a claim's legal character, as independent of rights under the collective-bargaining agreement, that decides whether a state cause of action may go forward; and that when liability is governed by independent state law and the meaning of contract terms is not in dispute, the bare fact that a collective-bargaining agreement is consulted for damage computation is no reason to extinguish the state-law claim. See, e. g., Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, and Lingle v. Norge Div. of Magic Chef, Inc., 486 U. S. 399. Here, the primary text for deciding whether Livadas was entitled to a penalty was not the collective-bargaining agreement, but a calendar. The only issue raised by her claim, whether her employer willfully failed to pay her wages promptly upon severance, was a question of state law entirely independent of the agreement. Absent any indication that there was a dispute over the penalty amount, the simple need to refer to bargained-for wage rates in computing the penalty is irrelevant. Pp. 121-125.(d) The Commissioner's attempt before this Court to recast the nonenforcement policy as expressing a "conscious decision" to keep the State's "hands off" the claims of employees protected by collectivebargaining agreements, either because the Commissioner's efforts and resources are more urgently needed by others or because official restraint will actually encourage the collective-bargaining and arbitral processes favored by federal law, is rejected. If the policy were in fact animated by the first of these late-blooming rationales, the Commissioner's emphasis on the need to avoid "interpret[ing]" or "apply[ing]" collective-bargaining agreements would be entirely misplaced. Nor is the second asserted rationale convincing, since enforcement under the policy does not turn on the bargain struck by the contracting parties or on whether the contractual wage rate is even arbitrable, but simply on the fact that the parties have consented to arbitration. The suggestion that the policy is meant to stimulate freewheeling bargaining over109Full Text of Opinion

1989_89-152

Justice BLACKMUN delivered the opinion of the Court.In the particular context of this case, we must decide whether federal law preempts a state law cause of action for intentional infliction of emotional distress. The suit is brought by an employee of a nuclear fuels production facility against her employer and arises out of actions by the employer allegedly taken in retaliation for the employee's nuclear safety complaints.IPetitioner Vera M. English was employed from 1972 to 1984 as a laboratory technician at the nuclear fuels production facility operated by respondent General Electric Company (GE) in Wilmington, N.C. In February 1984, petitioner complained to GE's management and to the Nuclear Regulatory Commission (NRC) about several perceived violations of nuclear safety standards at the facility, including Page 496 U. S. 75 the failure of her coworkers to clean up radioactive material spills in the laboratory.Frustrated by the company's failure to address her concerns, petitioner on one occasion deliberately failed to clean a work table contaminated with a uranium solution during a preceding shift. Instead, she outlined the contaminated areas with red tape so as to make them conspicuous. A few days later, petitioner called her supervisor's attention to the marked-off areas, which still had not been cleaned. As a result, work was halted while the laboratory was inspected and cleaned.Shortly after this episode, GE charged petitioner with a knowing failure to clean up radioactive contamination, and temporarily assigned her to other work. On April 30, 1984, GE's management informed petitioner that she would be laid off unless within 90 days she successfully bid for a position in an area of the facility where she would not be exposed to nuclear materials. On May 15, petitioner was notified of the company's final decision affirming the disciplinary action taken against her. Petitioner did not find another position by July 30, and her employment was terminated. [Footnote 1]In August, petitioner filed a complaint with the Secretary of Labor charging GE with violating § 210(a) of the Energy Reorganization Act of 1974, 92 Stat. 2951, as amended, 42 U.S.C. § 5851(a), which makes it unlawful for an employer in the nuclear industry to"discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . .""(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as Page 496 U. S. 76 amended, or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;""(2) testified or is about to testify in any such proceeding or;""(3) assisted or participated or is about to assist or participate in any manner in such a proceeding . . . or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended. [Footnote 2]"In her charge, petitioner alleged that GE's actions constituted unlawful employment discrimination in retaliation for her nuclear safety complaints to GE's management and to the NRC. An administrative law judge (ALJ) to whom the matter was referred found that GE had violated § 210(a) when it transferred and then discharged petitioner. The Secretary, however, dismissed the complaint as untimely because it had not been filed, as required by § 210(b)(1), within 30 days after the May 15 notice of the company's final decision. [Footnote 3] Page 496 U. S. 77In March 1987, petitioner filed a diversity action against GE in the United States District Court for the Eastern District of North Carolina. Petitioner in four counts raised two claims, one for wrongful discharge and one for intentional infliction of emotional distress. [Footnote 4] With respect to the latter, petitioner alleged that she was suffering from severe depression and emotional harm as a result of GE's "extreme and outrageous conduct." App. 20. Petitioner alleged that, in addition to transferring and ultimately firing her, GE (1) had removed her from the laboratory position under guard "as if she were a criminal," id. at 14; (2) had assigned her to degrading "makework" in her substitute assignment, ibid.; (3) had derided her as paranoid; (4) had barred her from working in controlled areas; (5) had placed her under constant surveillance during working hours; (6) had isolated her from coworkers, even during lunch periods; and (7) had conspired to charge her fraudulently with violations of safety and criminal laws. Id. at 14-17. Petitioner sought punitive as well as compensatory damages.Although the District Court concluded that petitioner had stated a valid claim for intentional infliction of emotional distress under North Carolina law, it nonetheless granted GE's motion to dismiss. 683 F. Supp. 1006, 1017-1018 (1988). The court did not accept GE's argument that petitioner's claim fell within the field of nuclear safety, a field that, according to GE, had been completely preempted by the Federal Government. The court held, however, that petitioner's claim was preempted because it conflicted with three particular aspects of § 210: (1) a provision that bars recovery under the section to any employee who "deliberately causes a violation of any requirement of [the Energy Reorganization Page 496 U. S. 78 Act,] or of the Atomic Energy Act," § 210(g); (2) the absence of any provision generally authorizing the Secretary to award exemplary or punitive damages; and (3) the provisions requiring that a whistleblower invoking the statute file an administrative complaint within 30 days after the violation occurs, and that the Secretary resolve the complaint within 90 days after its filing. See § 210(b)(1) and (b)(2)(A). In the court's view, Congress enacted this scheme to foreclose all remedies to whistleblowers who themselves violate nuclear safety requirements, to limit exemplary damages awards against the nuclear industry, and to guarantee speedy resolution of allegations of nuclear safety violations -- goals the court found incompatible with the broader remedies petitioner sought under state tort law.The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of petitioner's emotional distress claim on the basis of the District Court's reasoning. 871 F.2d 22, 23 (1989). That court concluded that Congress had intended to foreclose nuclear whistleblowers from pursuing state tort remedies, and stated its belief that the District Court "correctly identified and applied the relevant federal and state law." Ibid. Because of an apparent conflict with a decision of the First Circuit, see Norris v. Lumbermen's Mutual Casualty Co., 881 F.2d 1144 (1989), we granted certiorari. 493 U.S. 1055 (1990).IIAThe sole question for our resolution is whether the Federal Government has preempted petitioner's state law tort claim for intentional infliction of emotional distress. Our cases have established that state law is preempted under the Supremacy Clause, U.S. Const. Art. VI, cl. 2, in three circumstances. First, Congress can define explicitly the extent to which its enactments preempt state law. See Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 463 U. S. 95-98 (1983). Preemption Page 496 U. S. 79 fundamentally is a question of congressional intent, see Schneidewind v. ANR Pipeline Co., 485 U. S. 293, 485 U. S. 299 (1988), and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one.Second, in the absence of explicit statutory language, state law is preempted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," or where an Act of Congress "touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947). Although this Court has not hesitated to draw an inference of field preemption where it is supported by the federal statutory and regulatory schemes, it has emphasized: "[W]here . . . the field which Congress is said to have preempted" includes areas that have "been traditionally occupied by the States," congressional intent to supersede state laws must be "clear and manifest.'" Jones v. Rath Packing Co., 430 U. S. 519, 430 U. S. 525 (1977), quoting Rice v. Santa Fe Elevator Corp., 331 U.S. at 331 U. S. 230.Finally, state law is preempted to the extent that it actually conflicts with federal law. Thus, the Court has found preemption where it is impossible for a private party to comply with both state and federal requirements, see, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142-143 (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941). See also Maryland v. Louisiana, 451 U. S. 725, 451 U. S. 747 (1981). [Footnote 5] Page 496 U. S. 80It is undisputed that Congress has not explicitly preempted petitioner's state law tort action by inserting specific preemptive language into any of its enactments governing the nuclear industry. The District Court and apparently the Court of Appeals did not rest their decisions on a field preemption rationale either, but rather on what they considered an actual tension between petitioner's cause of action and the congressional goals reflected in § 210. In this Court, respondent seeks to defend the judgment both on the lower courts' rationale and on the alternative ground that petitioner's tort claim is located within a field reserved for federal regulation -- the field of nuclear safety. Before turning to the specific aspects of § 210 on which the lower courts based their decisions, we address the field preemption question.BThis is not the first case in which the Court has had occasion to consider the extent to which Congress has preempted the field of nuclear safety. In Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U. S. 190 (1983), the Court carefully analyzed the congressional enactments relating to the nuclear industry in order to decide whether a California law that conditioned the construction of a nuclear power plant on a state agency's approval of the plant's nuclear waste storage and disposal facilities fell within a preempted field. Although we need not repeat all of that analysis here, we summarize briefly the Court's discussion of the actions Congress has taken in the nuclear realm and the conclusions it drew from these actions.Until 1954, the use, control, and ownership of all nuclear technology remained a federal monopoly. The Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U.S.C. Page 496 U. S. 81 § 2011 et seq., stemmed from Congress' belief that the national interest would be served if the Government encouraged the private sector to develop atomic energy for peaceful purposes under a program of federal regulation and licensing. The Act implemented this policy decision by opening the door to private construction, ownership, and operation of commercial nuclear power reactors under the strict supervision of the Atomic Energy Commission (AEC). See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 438 U. S. 63 (1978). The AEC was given exclusive authority to license the transfer, delivery, receipt, acquisition, possession, and use of all nuclear materials. As was observed in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 435 U. S. 550 (1978), "[t]he [Federal Government's] prime area of concern in the licensing context . . . [was] national security, public health, and safety." With respect to these matters, no significant role was contemplated for the States.In 1959, Congress amended the Atomic Energy Act in order to"clarify the respective responsibilities . . . of the States and the [Federal Government] with respect to the regulation of byproduct, source, and special nuclear materials,"42 U.S.C. § 2021(a)(1), and generally to increase the States' role. The 1959 amendments authorized the NRC, by agreements with state governors, to discontinue the Federal Government's regulatory authority over certain nuclear materials under specified conditions. State regulatory programs adopted under the amendment were required to be "coordinated and compatible" with those of the NRC. § 2021(g).In 1974, Congress passed the Energy Reorganization Act, 88 Stat. 1233, 42 U.S.C. §§ 5801 et seq., which abolished the AEC and transferred its regulatory and licensing authority to the NRC. § 5841(f). The 1974 Act also expanded the number and range of safety responsibilities under the NRC's charge. As was observed in Pacific Gas, the Page 496 U. S. 82 NRC does not purport to exercise its authority based upon economic considerations, but rather is concerned primarily with public health and safety. See 461 U.S. at 461 U. S. 207. Finally, in 1978, Congress amended both the Atomic Energy Act and the Energy Reorganization Act. Pub.L. No. 95-601, 92 Stat. 2947. Among these amendments is § 210, 42 U.S.C. § 5851, which, as discussed above, encourages employees to report safety violations and provides a mechanism for protecting them against retaliation for doing so.After reviewing the relevant statutory provisions and legislative history, the Court in Pacific Gas concluded that "the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States." 461 U.S. at 461 U. S. 212. Although we ultimately determined that the California statute at issue there did not fall within the preempted field, we made clear our view that Congress intended that only "the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant." Id. at 461 U. S. 205. In the present dispute, respondent and petitioner disagree as to whether petitioner's tort action falls within the boundaries of the preempted field referred to in Pacific Gas.Respondent maintains that the preempted field of "nuclear safety" is a large one, and that § 210 is an integral part of it. Specifically, respondent contends that, because the Federal Government is better able to promote nuclear safety if whistleblowers pursue the federal remedy, the whole area marked off by § 210 should be considered part of the preempted field identified in Pacific Gas. Accordingly, respondent argues that all state law remedies for conduct that is covered by § 210 are preempted by Congress' decision to have the Federal Government exclusively regulate the field of nuclear safety.Petitioner and the United States as amicus curiae, on their part, contend that petitioner's claim for intentional infliction of emotional distress is not preempted because the Page 496 U. S. 83 Court made clear in Pacific Gas that state laws supported by nonsafety rationales do not lie within the preempted field. They argue that, since the state tort of intentional infliction of emotional distress is supported by a nonsafety rationale -- namely, the State's "substantial interest in protecting its citizens from the kind of abuse of which [petitioner] complain[s]," see Farmer v. Carpenters, 430 U. S. 290, 430 U. S. 302 (1977) -- petitioner's cause of action must be allowed to go forward.We think both arguments are somewhat wide of the mark. With respect to respondent's contention, we find no "clear and manifest" intent on the part of Congress, in enacting § 210, to preempt all state tort laws that traditionally have been available to those persons who, like petitioner, allege outrageous conduct at the hands of an employer. Indeed, acceptance of respondent's argument would require us to conclude that Congress has displaced not only state tort law, which is at issue in this case, but also state criminal law, to the extent that such criminal law is applied to retaliatory conduct occurring at the site of a nuclear employer. For example, if an employer were to retaliate against a nuclear whistleblower by hiring thugs to assault the employee on the job (conduct literally covered by § 210), respondent's position would imply that the state criminal law prohibiting such conduct is within the preempted field. We simply cannot believe that Congress intended that result. Instead, we think the District. Court was essentially correct in observing that, while § 210 obviously bears some relation to the field of nuclear safety, its "paramount" purpose was the protection of employees. [Footnote 6] See 683 F.Supp., at 1013. Accordingly, we see no basis for respondent's contention that all state law claims arising from conduct covered by the section are necessarily included in the preempted field. Page 496 U. S. 84Nor, however, can we accept petitioner's position, or the reading of Pacific Gas on which it is based. It is true that the holding in that case was premised, in part, on the conclusion that the California ban on nuclear construction was not motivated by safety concerns. Indeed, the majority of the Court suggested that a "state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field." 461 U.S. at 461 U. S. 213. In other words, the Court defined the preempted field, in part, by reference to the motivation behind the state law. This approach to defining the field had some support in the text of the 1959 amendments to the Atomic Energy Act, which provided, among other things, that"[n]othing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards."42 U.S.C. § 2021(k) (emphasis added). But the Court did not suggest that a finding of safety motivation was necessary to place a state law within the preempted field. On the contrary, it took great pains to make clear that state regulation of matters directly affecting the radiological safety of nuclear plant construction and operation, "even if enacted out of nonsafety concerns, would nevertheless [infringe upon] the NRC's exclusive authority." 461 U.S. at 461 U. S. 212. Thus, even as the Court suggested that part of the preempted field is defined by reference to the purpose of the state law in question, it made clear that another part of the field is defined by the state law's actual effect on nuclear safety.Because it is clear that the state tort law at issue here is not motivated by safety concerns, the former portion of the field argument is not relevant. [Footnote 7] The real issue, then, is Page 496 U. S. 85 whether petitioner's tort claim is so related to the "radiological safety aspects involved in the . . . operation of a nuclear [facility]," see id. at 461 U. S. 205, that it falls within the preempted field. In addressing this issue, we must bear in mind that not every state law that in some remote way may affect the nuclear safety decisions made by those who build and run nuclear facilities can be said to fall within the preempted field. We have no doubt, for instance, that the application of state minimum wage and child labor laws to employees at nuclear facilities would not be preempted, even though these laws could be said to affect tangentially some of the resource allocation decisions that might have a bearing on radiological safety. Instead, for a state law to fall within the preempted zone, it must have some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels. We recognize that the claim for intentional infliction of emotional distress at issue here may have some effect on these decisions, because liability for claims like petitioner's will attach additional consequences to retaliatory conduct by employers. As employers find retaliation more costly, they will be forced to deal with complaints by whistleblowers by other means, including altering radiological safety policies. Nevertheless, we believe that this effect is neither direct nor substantial enough to place petitioner's claim in the preempted field.This result is strongly suggested by the decision in Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984). The Court there held that a claim for punitive damages in a state tort action arising out of the escape of plutonium from a federally licensed nuclear facility did not fall within the preempted field discussed in Pacific Gas. The Court reached this result notwithstanding"the tension between the conclusion Page 496 U. S. 86 that [radiological] safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages [including punitive damages] based on its own law of liability"governing unsafe working conditions. 464 U.S. at 464 U. S. 256. Although the decision in Silkwood was based in substantial part on legislative history suggesting that Congress did not intend to include in the preempted field state tort remedies for radiation-based injuries, see 464 U.S. at 464 U. S. 251-256, we think it would be odd, if not irrational, to conclude that Congress intended to include tort actions stemming from retaliation against whistleblowers in the preempted field, but intended not to include tort actions stemming from radiation damage suffered as a result of actual safety violations. Potential liability for the kind of claim at issue in Silkwood will affect radiological safety decisions more directly than will potential liability under the kind of claim petitioner raises, because the tort claim in Silkwood attaches additional consequences to safety violations themselves, rather than to employer conduct that merely arises from allegations of safety violations. Moreover, and related, the prospect of compensatory and punitive damages for radiation-based injuries will undoubtedly affect nuclear employers' primary decisions about radiological safety in the construction and operation of nuclear power facilities far more substantially than will liability under the kind of claim petitioner asserts. It is thus not surprising that we find no evidence of a "clear and manifest" intent on the part of Congress to preempt tort claims like petitioner's. Cf. Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 486 U. S. 186 (1988) (increased workers' compensation award for injury caused by a safety violation at a government-owned nuclear facility is "incidental regulatory pressure" that Congress finds acceptable). Accordingly, we conclude that petitioner's claim does not lie within the preempted field of nuclear safety. [Footnote 8] Page 496 U. S. 87CWe now turn to the question whether, as the lower courts concluded, petitioner's claim conflicts with particular aspects of § 210. On its face, the section does no more than grant a federal administrative remedy to employees in one industry against one type of employer discrimination -- retaliation for whistleblowing. Ordinarily, the mere existence of a federal regulatory or enforcement scheme, even one as detailed as § 210, does not by itself imply preemption of state remedies. The Court has observed:"Undoubtedly, every subject that merits congressional legislation is, by definition, a subject of national concern. That cannot mean, however, that every federal statute ousts all related state law. . . . Instead, we must look for special features warranting preemption."Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 471 U. S. 719 (1985). Here, the District Court identified three "special features" of § 210 that it believed were incompatible with petitioner's claim.The District Court relied first on § 210(g), which provides that "Subsection (a) of this section [the prohibition on employer retaliation] shall not apply" where an employee "deliberately causes a violation of any requirement of this Act or of the Atomic Energy Act." According to the District Court and respondent, this section reflects a congressional desire to preclude all relief, including state remedies, to a whistleblower who deliberately commits a safety violation referred Page 496 U. S. 88 to in § 210(g). Permitting any state law claim based on whistleblowing retaliation, the court reasoned, would frustrate this congressional objective. We do not agree. As an initial matter, we note that the text of § 210(g) specifically limits its applicability to the remedy provided by § 210(a), and does not suggest that it bars state law tort actions. Nor does the legislative history of § 210 reveal a clear congressional purpose to supplant state law causes of action that might afford broader relief. Indeed, the only explanation for any of the statute's remedial limitations is the Committee Report's statement that employees who deliberately violate nuclear safety requirements would be denied protection under § 210(g) "[i]n order to avoid abuse of the protection afforded under this section." S.Rep. No. 95-848, p. 30 (1978) (emphasis added), U.S.Code Cong. & Admin.News 1978, pp. 7303-04.In any event, even if the District Court and respondent are correct in concluding that Congress wanted those who deliberately commit nuclear safety violations, as defined under § 210(g), to be denied all remedies against employer retaliation, this federal interest would be served by preempting state law only to the extent that it afforded recovery to such violators. See Norris v. Lumbermen's Mutual Casualty Co., 881 F.2d 1144, 1150 (CA1 1989). In the instant case, the ALJ found that petitioner had not deliberately committed a safety violation within the meaning of § 210(g), App. to Pet. for Cert. 44a, and neither the Secretary nor the lower courts have suggested otherwise. Thus, barring petitioner's tort action would not even serve the federal interest the lower courts and respondent have gleaned from their reading of this section.The District Court also relied on the absence in § 210 of general authorization for the Secretary to award exemplary damages against employers who engage in retaliatory conduct. The District Court concluded, and respondent now argues, that this absence implies a congressional intent to bar a state action, like petitioner's, that permits such an award. Page 496 U. S. 89 As the District Court put it, § 210 reflects"an informed judgment [by Congress] that in no circumstances should a nuclear whistler blower receive punitive damages when fired or discriminated against because of his or her safety complaints."683 F.Supp., at 1014. We believe the District Court and respondent have read too much into Congress' decision not to authorize exemplary damages for most § 210 violations. First, even with respect to actions brought under § 210, the District Court was incorrect in stating that "in no circumstances" will a nuclear whistleblower receive punitive damages; § 210(d) authorizes a district court to award exemplary damages in enforcement proceedings brought by the Secretary. Moreover, and more importantly, we think the District Court failed to follow this Court's teaching that "[o]rdinariiy, state causes of action are not preempted solely because they impose liability over and above that authorized by federal law." California v. ARC America Corp., 490 U. S. 93, 490 U. S. 105 (1989). Absent some specific suggestion in the text or legislative history of § 210, which we are unable to find, we cannot conclude that Congress intended to preempt all state actions that permit the recovery of exemplary damages.Finally, we address the District Court's holding that the expeditious timeframes provided by Congress for the processing of § 210 claims reflect a congressional decision that no whistleblower should be able to recover under any other law after the time for filing under § 210 has expired. The District Court reasoned, and respondent agrees, that if a state law remedy is available after the time for filing a § 210 complaint has run, a whistleblower will have less incentive to bring a § 210 complaint. As a result, the argument runs, federal regulatory agencies will remain unaware of some safety violations and retaliatory behavior, and will thus be unable to ensure radiological safety at nuclear facilities. We cannot deny that there is some force to this argument, but we Page 496 U. S. 90 do not believe that the problem is as great as respondent suggests.First, many if not most retaliatory incidents come about as a response to safety complaints that employees register with federal regulatory agencies. The Federal Government thus is already aware of these safety violations, whether or not the employee invokes the remedial provisions of § 210. Also, we are not so sure as respondent seems to be that employees will forgo their § 210 options and rely solely on state remedies for retaliation. Such a prospect is simply too speculative a basis on which to rest a finding of preemption. The Court has observed repeatedly that preemption is ordinarily not to be implied absent an "actual conflict." See, e.g. Savage v. Jones, 225 U. S. 501, 225 U. S. 533 (1912). The "teaching of this Court's decisions . . . enjoin[s] seeking out conflicts between state and federal regulation where none clearly exists." Nuron Cement Co. v. Detroit, 362 U. S. 440, 362 U. S. 446 (1960).IIIWe conclude that petitioner's claim for intentional infliction of emotional distress does not fall within the preempted field of nuclear safety as that field has been defined in prior cases. Nor does it conflict with any particular aspect of § 210. The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtEnglish v. General Elec. Co., 496 U.S. 72 (1990)English v. General Electric CompanyNo. 89-152Argued April 25, 1990Decided June 4, 1990496 U.S. 72SyllabusPetitioner English, a laboratory technician at a nuclear facility operated by respondent General Electric Company (GE), complained to GE's management and to the Federal Government about several perceived violations of nuclear safety standards at the facility, including the failure of her coworkers to clean up radioactive spills in the laboratory. Frustrated by GE's failure to address her concerns, English on one occasion deliberately failed to clean a work table contaminated with uranium during an earlier shift. Instead, she outlined the contaminated areas with red tape to make them conspicuous and, a few days later, called her supervisor's attention to the fact that the marked-off areas still had not been cleaned. Shortly after work was halted for inspection and cleaning of the laboratory, GE charged English with a knowing failure to clean up radioactive contamination, temporarily assigned her to other work, and ultimately discharged her. She then filed a complaint with the Secretary of Labor, alleging that GE's actions violated § 210(a) of the Energy Reorganization Act of 1974, which makes it unlawful for a nuclear industry employer to retaliate against an employee for reporting safety violations. Although an administrative law judge (ALJ) found a § 210(a) violation, the Secretary dismissed the complaint as untimely under the 30-day limitations period provided by § 210(b)(1). Subsequently, English filed a diversity action seeking compensatory and punitive damages from GE in the District Court, raising, inter alia, a state law claim for intentional infliction of emotional distress. While rejecting GE's argument that the latter claim fell within a field -- nuclear safety -- that had been completely preempted by the Federal Government, the court nevertheless dismissed the claim on the ground that it conflicted with three particular aspects of § 210 and was therefore preempted. The Court of Appeals affirmed.Held: English's state law claim for intentional infliction of emotional distress is not preempted by federal law. Pp. 496 U. S. 78-90.(a) The claim is not barred on a field preemption theory. After reviewing the relevant statutory provisions and legislative history, the Court in Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U. S. 190, concluded that "the Federal Government has occupied the entire field of nuclear safety concerns," Page 496 U. S. 73 id. at 461 U. S. 212, and expressed the view that Congress intended that only the "Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant," id. at 461 U. S. 205. English's action, however, does not fall within the boundaries of the preempted field as so defined, since the state tort law at issue is not motivated by safety concerns, see id. at 461 U. S. 213, and since the claim's actual effect on the nuclear safety decisions made by those who build and run nuclear facilities is not sufficiently direct and substantial, cf. Silkwood v. Kerr-McGee Corp., 464 U. S. 238. It is thus not surprising that there is no evidence of the necessary "clear and manifest" intent by Congress to preempt such claims. Pp. 496 U. S. 80-86.(b) English's claim does not conflict with particular aspects of § 210. First, neither the text nor the legislative history of § 210(g) -- which provides that "Subsection (a) of this section [the prohibition on employer retaliation] shall not apply" where an employee "deliberately causes a violation of any requirement of this Act or the Atomic Energy Act" -- reflects a congressional desire to preclude all relief, including state remedies, to a whistleblower who deliberately commits a safety violation. Even if that were Congress' intent, the federal interest would be served by preempting recovery by violators of safety standards. Here, the ALJ found that English did not deliberately commit a violation. Second, absent some specific suggestion in the text or legislative history, the failure of § 210 to provide general authorization for the Secretary to award punitive damages for § 210(a) violations does not imply a congressional intent to bar a state action, like English's, that permits such an award. Third, the expeditious timeframes provided for the processing of § 210 claims do not reflect a congressional decision that, in order to encourage the reporting of safety violations and retaliatory behavior, no whistleblower should be able to recover under any other law after the time for filing under § 210 has expired. Since many retaliatory incidents are a response to safety complaints made to the Federal Government, the Government is already aware of these safety violations even if employees do not invoke § 210's remedial provisions. Moreover, the suggestion that employees will forgo their § 210 options and rely solely on state remedies is simply too speculative a basis on which to rest a preemption finding. 496 U. S. 87-90.871 F.2d 22 (CA 1989), reversed and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court. Page 496 U. S. 74

1965_104

MR. JUSTICE FORTAS delivered the opinion of the Court.This case is here on certiorari to the United States Court of Appeals for the District of Columbia Circuit. The facts and the contentions of counsel raise a number Page 383 U. S. 543 of disturbing questions concerning the administration by the police and the Juvenile Court authorities of the District of Columbia laws relating to juveniles. Apart from raising questions as to the adequacy of custodial and treatment facilities and policies, some of which are not within judicial competence, the case presents important challenges to the procedure of the police and Juvenile Court officials upon apprehension of a juvenile suspected of serious offenses. Because we conclude that the Juvenile Court's order waiving jurisdiction of petitioner was entered without compliance with required procedures, we remand the case to the trial court.Morris A. Kent, Jr., first came under the authority of the Juvenile Court of the District of Columbia in 1959. He was then aged 14. He was apprehended as a result of several housebreakings and an attempted purse snatching. He was placed on probation, in the custody of his mother, who had been separated from her husband since Kent was two years old. Juvenile Court officials interviewed Kent from time to time during the probation period, and accumulated a "Social Service" file.On September 2, 1961, an intruder entered the apartment of a woman in the District of Columbia. He took her wallet. He raped her. The police found in the apartment latent fingerprints. They were developed and processed. They matched the fingerprints of Morris Kent, taken when he was 14 years old and under the jurisdiction of the Juvenile Court. At about 3 p.m. on September 5, 1961, Kent was taken into custody by the police. Kent was then 16, and therefore subject to the "exclusive jurisdiction" of the Juvenile Court. D.C.Code § 11-907 (1961), now § 11-1551 (Supp. IV, 1965). He was still on probation to that court as a result of the 1959 proceedings.Upon being apprehended, Kent was taken to police headquarters, where he was interrogated by police officers. Page 383 U. S. 544 It appears that he admitted his involvement in the offense which led to his apprehension, and volunteered information as to similar offenses involving housebreaking, robbery, and rape. His interrogation proceeded from about 3 p.m. to 10 p.m. the same evening. [Footnote 1]Sometime after 10 p.m., petitioner was taken to the Receiving Home for Children. The next morning, he was released to the police for further interrogation at police headquarters, which lasted until 5 p.m. [Footnote 2]The record does not show when his mother became aware that the boy was in custody, but, shortly after 2 p.m. on September 6, 1961, the day following petitioner's apprehension, she retained counsel.Counsel, together with petitioner's mother, promptly conferred with the Social Service Director of the Juvenile Court. In a brief interview, they discussed the possibility that the Juvenile Court might waive jurisdiction under D.C.Code § 11-914 (1961), now § 11-1553 (Supp. IV, 1965), and remit Kent to trial by the District Court. Counsel made known his intention to oppose waiver.Petitioner was detained at the Receiving Home for almost a week. There was no arraignment during this Page 383 U. S. 545 time, no determination by a judicial officer of probable cause for petitioner's apprehension. [Footnote 3]During this period of detention and interrogation, petitioner's counsel arranged for examination of petitioner by two psychiatrists and a psychologist. He thereafter filed with the Juvenile Court a motion for a hearing on the question of waiver of Juvenile Court jurisdiction, together with an affidavit of a psychiatrist certifying that petitioner "is a victim of severe psychopathology," and recommending hospitalization for psychiatric observation. Petitioner's counsel, in support of his motion to the effect that the Juvenile Court should retain jurisdiction of petitioner, offered to prove that if petitioner were given adequate treatment in a hospital under the aegis of the Juvenile Court, he would be a suitable subject for rehabilitation. Page 383 U. S. 546At the same time, petitioner's counsel moved that the Juvenile Court should give him access to the Social Service file relating to petitioner which had been accumulated by the staff of the Juvenile Court during petitioner's probation period, and which would be available to the Juvenile Court judge in considering the question whether it should retain or waive jurisdiction. Petitioner's counsel represented that access to this file was essential to his providing petitioner with effective assistance of counsel.The Juvenile Court judge did not rule on these motions. He held no hearing. He did not confer with petitioner or petitioner's parents or petitioner's counsel. He entered an order reciting that after "full investigation, I do hereby waive" jurisdiction of petitioner and directing that he be "held for trial for [the alleged] offenses under the regular procedure of the U.S. District Court for the District of Columbia." He made no findings. He did not recite any reason for the waiver. [Footnote 4] He made no reference to the motions filed by petitioner's counsel. We must assume that he denied, sub silentio, the motions for a hearing, the recommendation for hospitalization for psychiatric observation, the request for access to the Social Service file, and the offer to prove that petitioner was a fit subject for rehabilitation under the Juvenile Court's jurisdiction. [Footnote 5] Page 383 U. S. 547Presumably, prior to entry of his order, the Juvenile Court judge received and considered recommendations of the Juvenile Court staff, the Social Service file relating to petitioner, and a report dated September 8, 1961 (three days following petitioner's apprehension), submitted to him by the Juvenile Probation Section. The Social Service file and the September 8 report were later sent to the District Court, and it appears that both of them referred to petitioner's mental condition. The September 8 report spoke of "a rapid deterioration of [petitioner's] personality structure and the possibility of mental illness." As stated, neither this report nor the Social Service file was made available to petitioner's counsel.The provision of the Juvenile Court Act governing waiver expressly provides only for "full investigation." It states the circumstances in which jurisdiction may be waived and the child held for trial under adult procedures, but it does not state standards to govern the Juvenile Court's decision as to waiver. The provision reads as follows:"If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order Page 383 U. S. 548 such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases. [Footnote 6]"Petitioner appealed from the Juvenile Court's waiver order to the Municipal Court of Appeals, which affirmed, and also applied to the United States District Court for a writ of habeas corpus, which was denied. On appeal from these judgments, the United States Court of Appeals held on January 22, 1963, that neither appeal to the Municipal Court of Appeals nor habeas corpus was available. In the Court of Appeals' view, the exclusive method of reviewing the Juvenile Court's waiver order was a motion to dismiss the indictment in the District Court. Kent v. Reid, 114 U.S.App.D.C. 330, 316 F.2d 331 (1963).Meanwhile, on September 25, 1961, shortly after the Juvenile Court order waiving its jurisdiction, petitioner was indicted by a grand jury of the United States District Court for the District of Columbia. The indictment contained eight counts alleging two instances of housebreaking, robbery, and rape, and one of housebreaking and robbery. On November 16, 1961, petitioner moved the District Court to dismiss the indictment on the grounds that the waiver was invalid. He also moved the District Court to constitute itself a Juvenile Court as authorized by D.C.Code § 11-914 (1961), now § 11-1553 (Supp. IV, 1965). After substantial delay occasioned by petitioner's appeal and habeas corpus proceedings, the District Court addressed itself to the motion to dismiss on February 8, 1963. [Footnote 7] Page 383 U. S. 549The District Court denied the motion to dismiss the indictment. The District Court ruled that it would not "go behind" the Juvenile Court judge's recital that his order was entered "after full investigation." It held that"The only matter before me is as to whether or not the statutory provisions were complied with and the Courts have held . . . with reference to full investigation, that that does not mean a quasi-judicial or judicial hearing. No hearing is required."On March 7, 1963, the District Court held a hearing on petitioner's motion to determine his competency to stand trial. The court determined that petitioner was competent. [Footnote 8] Page 383 U. S. 550At trial, petitioner's defense was wholly directed toward proving that he was not criminally responsible because "his unlawful act was the product of mental disease or mental defect." Durham v. United States, 94 U.S.App.D.C. 228, 241, 214 F.2d 862, 875, 45 A.L.R.2d 1430 (1954). Extensive evidence, including expert testimony, was presented to support this defense. The jury found as to the counts alleging rape that petitioner was "not guilty by reason of insanity." Under District of Columbia law, this made it mandatory that petitioner be transferred to St. Elizabeth's Hospital, a mental institution, until his sanity is restored. [Footnote 9] On the six counts of housebreaking and robbery, the jury found that petitioner was guilty. [Footnote 10]Kent was sentenced to serve five to 15 years on each count as to which he was found guilty, or a total of 30 to 90 years in prison. The District Court ordered that the time to be spent at St. Elizabeth's on the mandatory commitment after the insanity acquittal be counted as part of the 30- to 90-year sentence. Petitioner appealed to the United States Court of Appeals for the District of Columbia Circuit. That court affirmed. 119 U.S.App.D.C. 378, 343 F.2d 247 (1964). [Footnote 11] Page 383 U. S. 551Before the Court of Appeals and in this Court, petitioner's counsel has urged a number of grounds for reversal. He argues that petitioner's detention and interrogation, described above, were unlawful. He contends that the police failed to follow the procedure prescribed by the Juvenile Court Act in that they failed to notify the parents of the child and the Juvenile Court itself, note 1 supra; that petitioner was deprived of his liberty for about a week without a determination of probable cause which would have been required in the case of an adult, see note 3 supra; that he was interrogated by the police in the absence of counsel or a parent, cf. Harling v. United States, 111 U.S.App.D.C. 174, 176, 295 F.2d 161, 163, n. 12 (1961), without warning of his right to remain silent or advice as to his right to counsel, in asserted violation of the Juvenile Court Act and in violation of rights that he would have if he were an adult; and that petitioner was fingerprinted in violation of the asserted intent of the Juvenile Court Act and while unlawfully detained, and that the fingerprints were unlawfully used in the District Court proceeding. [Footnote 12]These contentions raise problems of substantial concern as to the construction of and compliance with the Juvenile Court Act. They also suggest basic issues as to the justifiability of affording a juvenile less protection than is accorded to adults suspected of criminal offenses, particularly where, as here, there is an absence of any indication that the denial of rights available to adults was offset, mitigated or explained by action of the Government, as parens patriae, evidencing the special Page 383 U. S. 552 solicitude for juveniles commanded by the Juvenile Court Act. However, because we remand the case on account of the procedural error with respect to waiver of jurisdiction, we do not pass upon these questions. [Footnote 13]It is to petitioner's arguments as to the infirmity of the proceedings by which the Juvenile Court waived its otherwise exclusive jurisdiction that we address our attention. Petitioner attacks the waiver of jurisdiction on a number of statutory and constitutional grounds. He contends that the waiver is defective because no hearing was held; because no findings were made by the Juvenile Court; because the Juvenile Court stated no reasons for waiver; and because counsel was denied access to the Social Service file which presumably was considered by the Juvenile Court in determining to waive jurisdiction.We agree that the order of the Juvenile Court waiving its jurisdiction and transferring petitioner for trial in the United States District Court for the District of Columbia was invalid. There is no question that the order is reviewable on motion to dismiss the indictment in the District Court, as specified by the Court of Appeals in this case. Kent v. Reid, supra. The issue is the standards to be applied upon such review.We agree with the Court of Appeals that the statute contemplates that the Juvenile Court should have considerable Page 383 U. S. 553 latitude within which to determine whether it should retain jurisdiction over a child or -- subject to the statutory delimitation [Footnote 14] -- should waive jurisdiction. But this latitude is not complete. At the outset, it assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a "full investigation." Green v. United States, 113 U.S.App.D.C. 348, 308 F.2d 303 (1962). [Footnote 15] The statute gives the Juvenile Court a substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them, and the conclusion to be reached. It does not confer upon the Juvenile Court a license for arbitrary procedure. The statute does not permit the Juvenile Court to determine, in isolation and without the participation or any representation of the child, the "critically important" question whether a child will be deprived of the special protections and provisions of the Juvenile Court Act. [Footnote 16] It does not authorize the Juvenile Court, in total disregard of a motion for hearing filed by counsel, and without any hearing or statement or reasons, to decide -- as in this case -- that the child will be taken from the Receiving Home for Children Page 383 U. S. 554 and transferred to jail along with adults, and that he will be exposed to the possibility of a death sentence, [Footnote 17] instead of treatment for a maximum, in Kent's case, of five years, until he is 21. [Footnote 18]We do not consider whether, on the merits, Kent should have been transferred; but there is no place in our system of law for reaching a result of such tremendous consequences without ceremony -- without hearing, without effective assistance of counsel, without a statement of reasons. It is inconceivable that a court of justice dealing with adults with respect to a similar issue would proceed in this manner. It would be extraordinary if society's special concern for children, as reflected in the District of Columbia's Juvenile Court Act, permitted this procedure. We hold that it does not.1. The theory of the District's Juvenile Court Act, like that of other jurisdictions, [Footnote 19] is rooted in social welfare philosophy, rather than in the corpus juris. Its proceedings are designated as civil, rather than criminal. The Juvenile Court is theoretically engaged in determining the needs of the child and of society, rather than adjudicating criminal conduct. The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment. The State is parens Page 383 U. S. 555 patriae, rather than prosecuting attorney and judge. [Footnote 20] But the admonition to function in a "parental" relationship is not an invitation to procedural arbitrariness.2. Because the State is supposed to proceed in respect of the child as parens patriae, and not as adversary, courts have relied on the premise that the proceedings are "civil" in nature, and not criminal, and have asserted that the child cannot complain of the deprivation of important rights available in criminal cases. It has been asserted that he can claim only the fundamental due process right to fair treatment. [Footnote 21] For example, it has been held that he is not entitled to bail; to indictment by grand jury; to a speedy and public trial; to trial by jury; to immunity against self-incrimination; to confrontation of his accusers; and, in some jurisdictions (but not in the District of Columbia, see Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 236 F.2d 666 (1956), and Black v. United States, supra), that he is not entitled to counsel. [Footnote 22]While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. [Footnote 23] There is much evidence that some juvenile courts, including that of the District of Columbia, lack Page 383 U. S. 556 the personnel, facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children. [Footnote 24]This concern, however, does not induce us in this case to accept the invitation [Footnote 25] to rule that constitutional guaranties which would be applicable to adults charged with the serious offenses for which Kent was tried must be applied in juvenile court proceedings concerned with allegations of law violation. The Juvenile Court Act and the decisions of the United States Court of Appeals for the District of Columbia Circuit provide an adequate basis for decision of this case, and we go no further.3. It is clear beyond dispute that the waiver of jurisdiction is a "critically important" action determining vitally important statutory rights of the juvenile. The Court of Appeals for the District of Columbia Circuit has so held. See Black v. United States, supra; Watkins v. United States, 119 U.S.App.D.C. 409, 343 F.2d 278 (1964). The statutory scheme makes this plain. The Juvenile Court is vested with "original and exclusive jurisdiction" of the child. This jurisdiction confers special rights and immunities. He is, as specified by the statute, shielded from publicity. He may be confined, but, with rare exceptions, he may not be jailed along with adults. He may be detained, but only until he is 21 years of age. The court is admonished by the statute to give preference to retaining the child in the custody of his parents "unless his welfare and the safety and protection Page 383 U. S. 557 of the public cannot be adequately safeguarded without . . . removal." The child is protected against consequences of adult conviction such as the loss of civil rights, the use of adjudication against him in subsequent proceedings, and disqualification for public employment. D.C.Code §§ 11-907, 11-915, 11-927, 11-929 (1961). [Footnote 26]The net, therefore, is that petitioner -- then a boy of 16 -- was, by statute, entitled to certain procedures and benefits as a consequence of his statutory right to the "exclusive" jurisdiction of the Juvenile Court. In these circumstances, considering particularly that decision as to waiver of jurisdiction and transfer of the matter to the District Court was potentially as important to petitioner as the difference between five years' confinement and a death sentence, we conclude that, as a condition to a valid waiver order, petitioner as entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision. We believe that this result is required by the statute, read in the context of constitutional principles relating to due process and the assistance of counsel. [Footnote 27]The Court of Appeals in this case relied upon Wilhite v. United States, 108 U.S.App.D.C. 279, 281 F.2d 642 (1960). In that case, the Court of Appeals held, for purposes of a determination as to waiver of jurisdiction, Page 383 U. S. 558 that no formal hearing is required and that the "full investigation" required of the Juvenile Court need only be such "as is needed to satisfy that court . . . on the question of waiver." [Footnote 28] (Emphasis supplied.) The authority of Wilhite, however, is substantially undermined by other, more recent, decisions of the Court of Appeals.In Black v. United States, decided by the Court of Appeals on December 8, 1965, the court held that [Footnote 29] assistance of counsel in the "critically important" determination of waiver is essential to the proper administration of juvenile proceedings. Because the juvenile was not advised of his right to retained or appointed counsel, the judgment of the District Court, following waiver of jurisdiction by the Juvenile Court, was reversed. The court relied upon its decision in Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 236 F.2d 666 (1956), in which it had held that effective assistance of counsel in juvenile court proceedings is essential. See also McDaniel v. Shea, 108 U.S.App.D.C. 15, 278 F.2d 460 (1960). In Black, the court referred to the Criminal Justice Act, enacted four years after Shioutakon, in which Congress provided for the assistance of counsel "in proceedings before the juvenile court of the District of Columbia." D.C.Code § 2-2202 (1961). The court held that"The need is even greater in the adjudication of waiver [than in a case like Shioutakon], since it contemplates the imposition of criminal sanctions."122 U.S.App.D.C. at 395, 355 F.2d at 106.In Watkins v. United States, 119 U.S.App.D.C. 409, 343 F.2d 278 (1964), decided in November, 1964, the Page 383 U. S. 559 Juvenile Court had waived jurisdiction of appellant who was charged with housebreaking and larceny. In the District Court, appellant sought disclosure of the social record in order to attack the validity of the waiver. The Court of Appeals held that in a waiver proceeding a juvenile's attorney is entitled to access to such records. The court observed that"All of the social records concerning the child are usually relevant to waiver, since the Juvenile Court must be deemed to consider the entire history of the child in determining waiver. The relevance of particular items must be construed generously. Since an attorney has no certain knowledge of what the social records contain, he cannot be expected to demonstrate the relevance of particular items in his request.""The child's attorney must be advised of the information upon which the Juvenile Court relied in order to assist effectively in the determination of the waiver question, by insisting upon the statutory command that waiver can be ordered only after 'full investigation,' and by guarding against action of the Juvenile Court beyond its discretionary authority."119 U.S.App.D.C. at 413, 343 F.2d at 282. The court remanded the record to the District Court for a determination of the extent to which the records should be disclosed.The Court of Appeals' decision in the present case was handed down on October 26, 1964, prior to its decisions in Black and Watkins. The Court of Appeals assumed that, since petitioner had been a probationer of the Juvenile Court for two years, that Court had before it sufficient evidence to make an informed judgment. It therefore concluded that the statutory requirement of a "full investigation" had been met. It noted the absence of Page 383 U. S. 560 "a specification by the Juvenile Court Judge of precisely why he concluded to waive jurisdiction." 119 U.S.App.D.C. at 384, 343 F.2d at 253. While it indicated that, "in some cases, at least," a useful purpose might be served "by a discussion of the reasons motivating the determination," id. at 384, 343 F.2d at 253, n. 6, it did not conclude that the absence thereof invalidated the waiver.As to the denial of access to the social records, the Court of Appeals stated that "the statute is ambiguous." It said that petitioner's claim, in essence, is "that counsel should have the opportunity to challenge them, presumably in a manner akin to cross-examination." Id. at 389, 343 F.2d at 258. It held, however, that this is "the kind of adversarial tactics which the system is designed to avoid." It characterized counsel's proper function as being merely that of bringing forward affirmative information which might help the court. His function, the Court of Appeals said, "is not to denigrate the staff's submissions and recommendations." Ibid . Accordingly, it held that the Juvenile Court had not abused its discretion in denying access to the social records.We are of the opinion that the Court of Appeals misconceived the basic issue and the underlying values in this case. It did note, as another panel of the same court did a few months later in Black and Watkins, that the determination of whether to transfer a child from the statutory structure of the Juvenile Court to the criminal processes of the District Court is "critically important." We hold that it is, indeed, a "critically important" proceeding. The Juvenile Court Act confers upon the child a right to avail himself of that court's "exclusive" jurisdiction. As the Court of Appeals has said,"[I]t is implicit in [the Juvenile Court] scheme that noncriminal treatment is to be the rule -- and the adult criminal treatment the exception which must be governed Page 383 U. S. 561 by the particular factors of individual cases."Harling v. United States, 111 U.S.App.D.C. 174, 177-178, 295 F.2d 161, 164-165 (1961).Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver, including, of course, a statement of the relevant facts. It may not "assume" that there are adequate reasons, nor may it merely assume that "full investigation" has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal, or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of "full investigation" has been met, and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.Correspondingly, we conclude that an opportunity for a hearing, which may be informal, must be given the child prior to entry of a waiver order. Under Black, the child is entitled to counsel in connection with a waiver proceeding, and, under Watkins, counsel is entitled to see the child's social records. These rights are meaningless -- an illusion, a mockery -- unless counsel is given an opportunity to function.The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice. Appointment of counsel without affording an opportunity for hearing on a "critically important" decision is tantamount to denial of counsel. There is no justification Page 383 U. S. 562 for the failure of the Juvenile Court to rule on the motion for hearing filed by petitioner's counsel, and it was error to fail to grant a hearing.We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial, or even of the usual administrative hearing, but we do hold that the hearing must measure up to the essentials of due process and fair treatment. Pee v. United States, 107 U.S.App.D.C. 47, 50, 274 F.2d 556, 559 (1959).With respect to access by the child's counsel to the social records of the child, we deem it obvious that, since these are to be considered by the Juvenile Court in making its decision to waive, they must be made available to the child's counsel. This is what the Court of Appeals itself held in Watkins. There is no doubt as to the statutory basis for this conclusion, as the Court of Appeals pointed out in Watkins. We cannot agree with the Court of Appeals in the present case that the statute is "ambiguous." The statute expressly provides that the record shall be withheld from "indiscriminate" public inspection,"except that such records or parts thereof shall be made available by rule of court or special order of court to such persons . . . as have a legitimate interest in the protection. . . of the child. . . ."D.C.Code § 11- 929(b) (1961), now § 11-1586(b) (Supp. IV, 1965). (Emphasis supplied.) [Footnote 30] The Court of Appeals has held in Black, and we agree, that counsel must be afforded to the child in waiver proceedings. Counsel, therefore, Page 383 U. S. 563 have a "legitimate interest" in the protection of the child, and must be afforded access to these records. [Footnote 31]We do not agree with the Court of Appeals' statement, attempting to justify denial of access to these records, that counsel's role is limited to presenting"to the court anything on behalf of the child which might help the court in arriving at a decision; it is not to denigrate the staff's submissions and recommendations."On the contrary, if the staff's submissions include materials which are susceptible to challenge or impeachment, it is precisely the role of counsel to "denigrate" such matter. There is no irrebuttable presumption of accuracy attached to staff reports. If a decision on waiver is "critically important," it is equally of "critical importance" that the material submitted to the judge -- which is protected by the statute only against "indiscriminate" inspection -- be subjected, within reasonable limits having regard to the theory of the Juvenile Court Act, to examination, criticism and refutation. While the Juvenile Court judge may, of course, receive ex parte analyses and recommendations from his staff, he may not, for purposes of a decision on waiver, receive and rely upon secret information, whether emanating from his staff or otherwise. The Juvenile Court is governed in this respect by the established principles which control courts and quasi-judicial agencies of the Government.For the reasons stated, we conclude that the Court of Appeals and the District Court erred in sustaining the validity of the waiver by the Juvenile Court. The Government urges that any error committed by the Juvenile Page 383 U. S. 564 Court was cured by the proceedings before the District Court. It is true that the District Court considered and denied a motion to dismiss on the grounds of the invalidity of the waiver order of the Juvenile Court, and that it considered and denied a motion that it should itself, as authorized by statute, proceed in this case to "exercise the powers conferred upon the juvenile court." D.C.Code § 11-914 (1961), now § 11-1553 (Supp. IV, 1965). But we agree with the Court of Appeals in Black that"the waiver question was primarily and initially one for the Juvenile Court to decide, and its failure to do so in a valid manner cannot be said to be harmless error. It is the Juvenile Court, not the District Court, which has the facilities, personnel and expertise for a proper determination of the waiver issue."122 U.S.App.D.C. at 396, 355 F.2d at 107. [Footnote 32]Ordinarily, we would reverse the Court of Appeals and direct the District Court to remand the case to the Juvenile Court for a new determination of waiver. If, on remand, the decision were against waiver, the indictment in the District Court would be dismissed. See Black v. United States, supra. However, petitioner has now passed the age of 21, and the Juvenile Court can no longer exercise jurisdiction over him. In view of the unavailability of a redetermination of the waiver question by the Juvenile Court, it is urged by petitioner that the conviction should be vacated and the indictment dismissed. In the circumstances of this case, and in light of the remedy which the Court of Appeals fashioned in Page 383 U. S. 565 Black, supra, we do not consider it appropriate to grant this drastic relief. [Footnote 33] Accordingly, we vacate the order of the Court of Appeals and the judgment of the District Court and remand the case to the District Court for a hearing de novo on waiver, consistent with this opinion. [Footnote 34] If that court finds that waiver was inappropriate, petitioner's conviction must be vacated. If, however, it finds that the waiver order was proper when originally made, the District Court may proceed, after consideration of such motions as counsel may make and such further proceedings, if any, as may be warranted, to enter an appropriate judgment. Cf. Black v. United States, supra.Reversed

U.S. Supreme CourtKent v. United States, 383 U.S. 541 (1966)Kent v. United StatesNo. 104Argued January 19, 1966Decided March 21, 1966383 U.S. 541SyllabusPetitioner was arrested at the age of 16 in connection with charges of housebreaking, robbery and rape. As a juvenile, he was subject to the exclusive jurisdiction of the District of Columbia Juvenile Court unless that court, after "full investigation," should waive jurisdiction over him and remit him for trial to the United States District Court for the District of Columbia. Petitioner's counsel filed a motion in the Juvenile Court for a hearing on the question of waiver, and for access to the Juvenile Court's Social Service file which had been accumulated on petitioner during his probation for a prior offense. The Juvenile Court did not rule on these motions. It entered an order waiving jurisdiction, with the recitation that this was done after the required "full investigation." Petitioner was indicted in the District Court. He moved to dismiss the indictment on the ground that the .Juvenile Court's waiver was invalid. The District Court overruled the motion, and petitioner was tried. He was convicted on six counts of housebreaking and robbery, but acquitted on two rape counts by reason of insanity. On appeal, petitioner raised, among other things, the validity of the Juvenile Court's waiver of jurisdiction; the United States Court of Appeals for the District of Columbia Circuit affirmed, finding the procedure leading to waiver and the waiver order itself valid.Held: The Juvenile Court order waiving jurisdiction and remitting petitioner for trial in the District Court was invalid. Pp. 383 U. S. 552-564.(a) The Juvenile Court's latitude in determining whether to waive jurisdiction is not complete. It"assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a 'full investigation.'"Pp. 383 U. S. 552-554.(b) The parens patriae philosophy of the Juvenile Court "is not an invitation to procedural arbitrariness." Pp. 383 U. S. 554-556.(c) As the Court of Appeals for the District of Columbia Circuit has held, "the waiver of jurisdiction is a critically important' Page 383 U. S. 542 action determining vitally important statutory rights of the juvenile." Pp. 383 U. S. 556-557.(d) The Juvenile Court Act requires "full investigation," and makes the Juvenile Court records available to persons having a "legitimate interest in the protection . . . of the child. . . ." These provisions, "read in the context of constitutional principles relating to due process and the assistance of counsel," entitle a juvenile to a hearing, to access by his counsel to social records and probation or similar reports which presumably are considered by the Juvenile Court, and to a statement of the reasons for the Juvenile Court's decision sufficient to enable meaningful appellate review thereof. Pp. 383 U. S. 557-563.(e) Since petitioner is now 21, and beyond the jurisdiction of the Juvenile Court, the order of the Court of Appeals and the judgment of the District Court are vacated, and the case is remanded to the District Court for a hearing de novo, consistent with this opinion, on whether waiver was appropriate when ordered by the Juvenile Court."If that court finds that waiver was inappropriate, petitioner's conviction must be vacated. If, however it finds that the waiver order was proper when originally made, the District Court may proceed, after consideration of such motions as counsel may make and such further proceedings, if any, as may be warranted, to enter an appropriate judgment."Pp. 383 U. S. 564-565.119 U.S.App.D.C. 378, 343 F.2d 247, reversed and remanded.

1982_81-1251

JUSTICE WHITE delivered the opinion of the Court.In Pickering v. Board of Education, 391 U. S. 563 (1968), we stated that a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. We also recognized that the State's interests as an employer in regulating the speech of its employees "differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id. at 391 U. S. 568. The problem, we thought, was arriving"at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."Ibid. We return to this problem today and consider whether the First and Fourteenth Amendments prevent the discharge of a state employee for circulating a questionnaire concerning internal office affairs.IThe respondent, Sheila Myers, was employed as an Assistant District Attorney in New Orleans for five and a half years. She served at the pleasure of petitioner Harry Connick, the District Attorney for Orleans Parish. During this period, Myers competently performed her responsibilities of trying criminal cases.In the early part of October, 1980, Myers was informed that she would be transferred to prosecute cases in a different section of the criminal court. Myers was strongly opposed to the proposed transfer [Footnote 1] and expressed her view to several of her supervisors, including Connick. Despite her objections, on October 6, Myers was notified that she was being transferred. Page 461 U. S. 141 Myers again spoke with Dennis Waldron, one of the First Assistant District Attorneys, expressing her reluctance to accept the transfer. A number of other office matters were discussed, and Myers later testified that, in response to Waldron's suggestion that her concerns were not shared by others in the office, she informed him that she would do some research on the matter.That night, Myers prepared a questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. [Footnote 2] Early the following morning, Myers typed and copied the questionnaire. She also met with Connick, who urged her to accept the transfer. She said she would "consider" it. Connick then left the office. Myers then distributed the questionnaire to 15 Assistant District Attorneys. Shortly after noon, Dennis Waldron learned that Myers was distributing the survey. He immediately phoned Connick and informed him that Myers was creating a "mini-insurrection" within the office. Connick returned to the office and told Myers that she was being terminated because of her refusal to accept the transfer. She was also told that her distribution of the questionnaire was considered an act of insubordination. Connick particularly objected to the question which inquired whether employees "had confidence in and would rely on the word" of various superiors in the office, and to a question concerning pressure to work in political campaigns which he felt would be damaging if discovered by the press.Myers filed suit under 42 U.S.C. § 1983 (1976 ed., Supp. V), contending that her employment was wrongfully terminated because she had exercised her constitutionally protected right of free speech. The District Court agreed, ordered Myers reinstated, and awarded backpay, damages, and Page 461 U. S. 142 attorney's fees. 507 F. Supp. 752 (ED La.1981). [Footnote 3] The District Court found that, although Connick informed Myers that she was being fired because of her refusal to accept a transfer, the facts showed that the questionnaire was the real reason for her termination. The court then proceeded to hold that Myers' questionnaire involved matters of public concern, and that the State had not "clearly demonstrated" that the survey "substantially interfered" with the operations of the District Attorney's office.Connick appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed on the basis of the District Court's opinion. 654 F.2d 719 (1981). Connick then sought review in this Court by way of certiorari, which we granted. 455 U.S. 999 (1982).IIFor at least 15 years, it has been settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression. Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 605-606 (1967); Pickering v. Board of Education, 391 U. S. 563 (1968); Perry v. Sindermann, 408 U. S. 593, 408 U. S. 597 (1972); Branti v. Finkel, 445 U. S. 507, 445 U. S. 515-516 (1980). Our task, as we defined it in Pickering, is to seek"a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."391 U.S. at 391 U. S. 568. The District Court, and thus the Court of Appeals as well, misapplied our decision in Pickering, and consequently, in our view, erred in striking the balance for respondent. Page 461 U. S. 143AThe District Court got off on the wrong foot in this case by initially finding that,"[t]aken as a whole, the issues presented in the questionnaire relate to the effective functioning of the District Attorney's Office and are matters of public importance and concern."507 F. Supp. at 758. Connick contends at the outset that no balancing of interests is required in this case, because Myers' questionnaire concerned only internal office matters, and that such speech is not upon a matter of "public concern," as the term was used in Pickering. Although we do not agree that Myers' communication in this case was wholly without First Amendment protection, there is much force to Connick's submission. The repeated emphasis in Pickering on the right of a public employee "as a citizen, in commenting upon matters of public concern," was not accidental. This language, reiterated in all of Pickering's progeny, [Footnote 4] reflects both the historical evolvement of the rights of public employees and the common-sense realization that government offices could not function if every employment decision became a constitutional matter. [Footnote 5]For most of this century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment -- including those which restricted the exercise of constitutional rights. The classic formulation of this position was that of Justice Holmes, who, when sitting on the Supreme Judicial Court of Massachusetts, observed: "[A policeman] may have a constitutional Page 461 U. S. 144 right to talk politics, but he has no constitutional right to be a policeman." McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892). For many years, Holmes' epigram expressed this Court's law. Adler v. Board of Education, 342 U. S. 485 (1952); Garner v. Los Angeles Bd. of Public Works, 341 U. S. 716 (1951); Public Workers v. Mitchell, 330 U. S. 75 (1947); United States v. Wurzbach, 280 U. S. 396 (1930); Ex parte Curtis, 106 U. S. 371 (1882).The Court cast new light on the matter in a series of cases arising from the widespread efforts in the 1950's and early 1960's to require public employees, particularly teachers, to swear oaths of loyalty to the State and reveal the groups with which they associated. In Wiemann v. Updegraff, 344 U. S. 183 (1952), the Court held that a State could not require its employees to establish their loyalty by extracting an oath denying past affiliation with Communists. In Cafeteria Workers v. McElroy, 367 U. S. 886 (1961), the Court recognized that the government could not deny employment because of previous membership in a particular party. See also Shelton v. Tucker, 364 U. S. 479, 364 U. S. 490 (1960); Torcaso v. Watkins, 367 U. S. 488 (1961); Cramp v. Board of Public Instruction, 368 U. S. 278 (1961). By the time Sherbert v. Verner, 374 U. S. 398 (1963), was decided, it was already"too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege."Id. at 374 U. S. 404. It was therefore no surprise when, in Keyishian v. Board of Regents, supra, the Court invalidated New York statutes barring employment on the basis of membership in "subversive" organizations, observing that the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, had been uniformly rejected. Id. at 385 U. S. 605-606.In all of these cases, the precedents in which Pickering is rooted, the invalidated statutes and actions sought to suppress the rights of public employees to participate in public Page 461 U. S. 145 affairs. The issue was whether government employees could be prevented or "chilled" by the fear of discharge from joining political parties and other associations that certain public officials might find "subversive." The explanation for the Constitution's special concern with threats to the right of citizens to participate in political affairs is no mystery. The First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U. S. 476, 354 U. S. 484 (1957); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 269 (1964). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 74-75 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the "highest rung of the heirarchy of First Amendment values,'" and is entitled to special protection. 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).Pickering v. Board of Education, supra, followed from this understanding of the First Amendment. In Pickering, the Court held impermissible under the First Amendment the dismissal of a high school teacher for openly criticizing the Board of Education on its allocation of school funds between athletics and education and its methods of informing taxpayers about the need for additional revenue. Pickering's subject was "a matter of legitimate public concern" upon which "free and open debate is vital to informed decisionmaking by the electorate." 391 U.S. at 391 U. S. 571-572.Our cases following Pickering also involved safeguarding speech on matters of public concern. The controversy in Perry v. Sindermann, 408 U. S. 593 (1972), arose from the failure to rehire a teacher in the state college system who had testified before committees of the Texas Legislature and had become involved in public disagreement over whether the college should be elevated to 4-year status -- a change opposed by the Regents. In Mt. Healthy City Board of Ed. v. Page 461 U. S. 146 Doyle, 429 U. S. 274 (1977), a public school teacher was not rehired because, allegedly, he had relayed to a radio .station the substance of a memorandum relating to teacher dress and appearance that the school principal had circulated to various teachers. The memorandum was apparently prompted by the view of some in the administration that there was a relationship between teacher appearance and public support for bond issues, and indeed, the radio station promptly announced the adoption of the dress code as a news item. Most recently, in Givhan v. Western Line Consolidated School District, 439 U. S. 410 (1979), we held that First Amendment protection applies when a public employee arranges to communicate privately with his employer, rather than to express his views publicly. Although the subject matter of Mrs. Givhan's statements were not the issue before the Court, it is clear that her statements concerning the School District's allegedly racially discriminatory policies involved a matter of public concern.Pickering, its antecedents, and its progeny lead us to conclude that, if Myers' questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. [Footnote 6] When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable. Page 461 U. S. 147 Board of Regents v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann, supra; Bishop v. Wood, 426 U. S. 341, 426 U. S. 349-350 (1976).We do not suggest, however, that Myers' speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment."[T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political. 'Great secular causes, with smaller ones, are guarded.'"Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 389 U. S. 223 (1967), quoting Thomas v. Collins, 323 U. S. 516, 323 U. S. 531 (1945). We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction. See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Roth v. United States, supra; New York v. Ferber, 458 U. S. 747 (1982). For example, an employee's false criticism of his employer on grounds not of public concern may be cause for his discharge, but would be entitled to the same protection in a libel action accorded an identical statement made by a man on the street. We hold only that, when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Cf. Bishop v. Wood, supra, at 426 U. S. 349-350. Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee grievances not afforded by the First Amendment to those who do not work for the State.Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context Page 461 U. S. 148 of a given statement, as revealed by the whole record. [Footnote 7] In this case, with but one exception, the questions posed by Myers to her coworkers do not fall under the rubric of matters of "public concern." We view the questions pertaining to the confidence and trust that Myers' coworkers possess in various supervisors, the level of office morale, and the need for a grievance committee as mere extensions of Myers' dispute over her transfer to another section of the criminal court. Unlike the dissent, post at 461 U. S. 163, we do not believe these questions are of public import in evaluating the performance of the District Attorney as an elected official. Myers did not seek to inform the public that the District Attorney's Office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others. Indeed, the questionnaire, if released to the public, would convey no information at all other than the fact that a single employee is upset with the status quo. While discipline and morale in the workplace are related to an agency's efficient performance of its duties, the focus of Myers' questions is not to evaluate the performance of the office, but rather to gather ammunition for another round of controversy with her superiors. These questions reflect one employee's dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre. [Footnote 8] Page 461 U. S. 149To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark -- and certainly every criticism directed at a public official -- would plant the seed of a constitutional case. While, as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.One question in Myers' questionnaire, however, does touch upon a matter of public concern. Question 11 inquires if assistant district attorneys "ever feel pressured to work in political campaigns on behalf of office supported candidates." We have recently noted that official pressure upon employees to work for political candidates not of the worker's own choice constitutes a coercion of belief in violation of fundamental constitutional rights. Branti v. Finkel, 445 U.S. at 445 U. S. 515-516; Elrod v. Burns, 427 U. S. 347 (1976). In addition, there is a demonstrated interest in this country that government service should depend upon meritorious performance, rather than political service. CSC v. Letter Carriers, 413 U. S. 548 (1973); Public Workers v. Mitchell, 330 U. S. 75 (1947). Given this history, we believe it apparent that the issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal.BBecause one of the questions in Myers' survey touched upon a matter of public concern and contributed to her discharge, we must determine whether Connick was justified in discharging Myers. Here the District Court again erred in imposing an unduly onerous burden on the State to justify Page 461 U. S. 150 Myers' discharge. The District Court viewed the issue of whether Myers' speech was upon a matter of "public concern" as a threshold inquiry, after which it became the government's burden to "clearly demonstrate" that the speech involved "substantially interfered" with official responsibilities. Yet Pickering unmistakably states, and respondent agrees, [Footnote 9] that the State's burden in justifying a particular discharge varies depending upon the nature of the employee's expression. Although such particularized balancing is difficult, the courts must reach the most appropriate possible balance of the competing interests. [Footnote 10]CThe Pickering balance requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public. One hundred years ago, the Court noted the government's legitimate purpose in"promot[ing] Page 461 U. S. 151 efficiency and integrity in the discharge of official duties, and [in] maintain[ing] proper discipline in the public service."Ex parte Curtis, 106 U.S. at 106 U. S. 373. As JUSTICE POWELL explained in his separate opinion in Arnett v. Kennedy, 416 U. S. 134, 416 U. S. 168 (1974):"To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation, and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency."We agree with the District Court that there is no demonstration here that the questionnaire impeded Myers' ability to perform her responsibilities. The District Court was also correct to recognize that"it is important to the efficient and successful operation of the District Attorney's office for Assistants to maintain close working relationships with their superiors."507 F. Supp. at 759. Connick's judgment, and apparently also that of his first assistant Dennis Waldron, who characterized Myers' actions as causing a "mini-insurrection," was that Myers' questionnaire was an act of insubordination which interfered with working relationships. [Footnote 11] When close working relationships are essential to fulfilling public Page 461 U. S. 152 responsibilities, a wide degree of deference to the employer's judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action. [Footnote 12] We caution that a stronger showing may be necessary if the employee's speech more substantially involved matters of public concern.The District Court rejected Connick's position because,"[u]nlike a statement of fact which might be deemed critical of one's superiors, [Myers'] questionnaire was not a statement of fact, but the presentation and solicitation of ideas and opinions,"which are entitled to greater constitutional protection because, "under the First Amendment, there is no such thing as a false idea.'" Ibid. This approach, while perhaps relevant in weighing the value of Myers' speech, bears no logical relationship to the issue of whether the questionnaire undermined office relationships. Questions, no less than forcefully stated opinions and facts, carry messages and it requires no unusual insight to conclude that the purpose, if not the likely result, of the questionnaire is to seek to precipitate a vote of no confidence in Connick and his supervisors. Thus, Question 10, which asked whether or not the Assistants had confidence in and relied on the word of five named supervisors, is a statement that carries the clear potential for undermining office relations.Also relevant is the manner, time, and place in which the questionnaire was distributed. As noted in Givhan v. Western Line Consolidated School District, 439 U.S. at 439 U. S. 415, n. 4:"Private expression . . . may in some situations bring additional Page 461 U. S. 153 factors to the Pickering calculus. When a government employee personally confronts his immediate superior, the employing agency's institutional efficiency may be threatened not only by the content of the employee's message, but also by the manner, time, and place in which it is delivered."Here the questionnaire was prepared and distributed at the office; the manner of distribution required not only Myers to leave her work, but others to do the same in order that the questionnaire be completed. [Footnote 13] Although some latitude in when official work is performed is to be allowed when professional employees are involved, and Myers did not violate announced office policy, [Footnote 14] the fact that Myers, unlike Pickering, exercised her rights to speech at the office supports Connick's fears that the functioning of his office was endangered.Finally, the context in which the dispute arose is also significant. This is not a case where an employee, out of purely academic interest, circulated a questionnaire so as to obtain useful research. Myers acknowledges that it is no coincidence that the questionnaire followed upon the heels of the transfer notice. When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor's view that the employee has threatened the authority of the employer to run the office. Although we accept the District Court's factual finding that Myers' reluctance to accede to the transfer order was not a sufficient cause in itself for her dismissal, and thus does not constitute a sufficient defense under Mt. Healthy Page 461 U. S. 154 City Board of Ed. v. Doyle, 429 U. S. 274 (1977), this does not render irrelevant the fact that the questionnaire emerged after a persistent dispute between Myers and Connick and his deputies over office transfer policy.IIIMyers' questionnaire touched upon matters of public concern in only a most limited sense; her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy. The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Myers' discharge therefore did not offend the First Amendment. We reiterate, however, the caveat we expressed in Pickering, 391 U.S. at 391 U. S. 569:"Because of the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . . to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged."Our holding today is grounded in our longstanding recognition that the First Amendment's primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a government office. Although today the balance is struck for the government, this is no defeat for the First Amendment. For it would indeed be a Pyrrhic victory for the great principles of free expression if the Amendment's safeguarding of a public employee's right, as a citizen, to participate in discussions concerning public affairs were confused with the attempt to constitutionalize the employee grievance that we see presented here. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtConnick v. Myers, 461 U.S. 138 (1983)Connick v. MyersNo. 81-1251Argued November 8, 1982Decided April 20, 1983461 U.S. 138SyllabusRespondent was employed as an Assistant District Attorney in New Orleans with the responsibility of trying criminal cases. When petitioner District Attorney proposed to transfer respondent to prosecute cases in a different section of the criminal court, she strongly opposed the transfer, expressing her view to several of her supervisors, including petitioner. Shortly thereafter, she prepared a questionnaire that she distributed to the other Assistant District Attorneys in the office concerning office transfer policy, office morale, the need for a grievance committee, the level ,of confidence in supervisors, and whether employees felt pressured to work in political campaigns. Petitioner then informed respondent that she was being terminated for refusal to accept the transfer, and also told her that her distribution of the questionnaire was considered an act of insubordination. Respondent filed suit in Federal District Court under 42 U.S.C. § 1983 (1976 ed., Supp. V), alleging that she was wrongfully discharged because she had exercised her constitutionally protected right of free speech. The District Court agreed, ordered her reinstated, and awarded backpay, damages, and attorney's fees. Finding that the questionnaire, not the refusal to accept the transfer, was the real reason for respondent's termination, the court held that the questionnaire involved matters of public concern and that the State had not "clearly demonstrated" that the questionnaire interfered with the operation of the District Attorney's office. The Court of Appeals affirmed.Held: Respondent's discharge did not offend the First Amendment. Pp. 461 U. S. 142-154.(a) In determining a public employee's rights of free speech, the problem is to arrive"at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."Pickering v. Board of Education, 391 U. S. 563, 391 U. S. 568. P. 461 U. S. 142.(b) When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not Page 461 U. S. 139 the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Here, except for the question in respondent's questionnaire regarding pressure upon employees to work in political campaigns, the questions posed do not fall under the rubric of matters of "public concern." Pp. 461 U. S. 143-149.(c) The District Court erred in imposing an unduly onerous burden on the State to justify respondent's discharge by requiring it to "clearly demonstrate" that the speech involved "substantially interfered" with the operation of the office. The State's burden in justifying a particular discharge varies depending upon the nature of the employee's expression. Pp. 461 U. S. 149-150.(d) The limited First Amendment interest involved here did not require petitioner to tolerate action that he reasonably believed would disrupt the office, undermine his authority, and destroy the close working relationships within the office. The question on the questionnaire regarding the level of confidence in supervisors was a statement that carried the clear potential for undermining office relations. Also, the fact that respondent exercised her rights to speech at the office supports petitioner's fears that the function of his office was endangered. And the fact that the questionnaire emerged immediately after a dispute between respondent and petitioner and his deputies requires that additional weight be given to petitioner's view that respondent threatened his authority to run the office. Pp. 461 U. S. 150-154.654 F.2d 719, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J. filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS JJ., joined, post, p. 461 U. S. 156. Page 461 U. S. 140

1964_35

MR. JUSTICE GOLDBERG delivered the opinion of the Court.The issue in this case is whether respondent's attempted corporate rehabilitation under the Bankruptcy Act, materially affecting the rights of widespread public investor creditors, may be conducted under Chapter XI of the Bankruptcy Act, 52 Stat. 905, as amended, 11 U.S.C. § 701 et seq. (1958 ed.), or whether dismissal or, in effect, transfer to proceedings under Chapter X of that Act, 52 Stat. 883, as amended, 11 U.S.C. § 501 et seq. (1958 ed.), is required upon motion by the Securities and Exchange Commission or any other party in interest, pursuant to § 328 of the Bankruptcy Act, 66 Stat. 432, 11 U.S.C. § 728 (1958 ed.). [Footnote 1] Page 379 U. S. 598IRespondent, American Trailer Rentals Company, was organized in 1958 to engage in the automobile-trailer rental business. [Footnote 2] The business was financed largely through the sale of trailers to investors and their simultaneous lease-back. From 1959 to 1961, hundreds of small investors, scattered throughout the entire western part of the United States, purchased and leased back a total of 5,866 trailers, paying an aggregate price of $3,587,439 (approximately $600 per trailer). Under the usual form of lease-back agreement, the trailer owners were to receive a set 2% of their investment per month for 10 years. [Footnote 3]The trailers sold to investors and then leased back are of the general utility type that are attached to the rear bumper of automobiles. They were placed by respondent at gasoline stations, the operators of which acted as respondent's rental agents, without the investors ever having seen them. Respondent had about 700 such service station operators in December, 1961, although the number had declined to about 500 by the time the petition for an arrangement was filed a year later.Respondent's further offering of these sale and lease-back arrangements to the public was halted in 1961, when the SEC advised respondent that these sale and lease-back arrangements were investment contracts, and therefore securities, which could not be sold to the public unless and until a registration statement was filed and became Page 379 U. S. 599 effective under the Securities Act of 1933, 48 Stat. 74, as amended, 15 U.S.C. § 77a et seq. (1958 ed.). Respondent then filed a registration statement with the SEC pertaining to these sale and lease-back arrangements. This registration statement, however, never became effective, and proceedings were instituted by the SEC to stop distribution of respondent's proposed prospectus on the grounds that it contained false and misleading statements. See Securities Act of 1933, § 8(d), 48 Stat. 79, 15 U.S.C. § 77h(d) (1958 ed.). In June 1963, respondent consented to the entry of an order stopping distribution of this prospectus. See SEC, Securities Act Release No. 4615 (1963).After this attempt to register the sale and lease-back agreements had failed, respondent's executive vice president and other persons organized a corporation named Capitol Leasing Corporation, which offered respondent's investor creditors an exchange of its stock for their trailers on the basis of one share of its stock for each $2 the investor creditors had paid for the trailers. After Capitol had acquired approximately 300 of the 5,866 trailers outstanding in exchange for its stock, the SEC suspended the exemption from registration for small offerings, upon which Capitol had relied in making this offer, [Footnote 4] on the grounds that there was reasonable cause to believe that the material used in making this offer again contained false and misleading statements.Following this event, respondent filed a petition and a proposed plan of arrangement under Chapter XI of the Bankruptcy Act. The petition, annexed schedules, and other documents show that respondent had never operated at a profit. For the three years ended September Page 379 U. S. 600 30, 1961, it had an aggregate income from "gross rentals" of $395,610. In the same period, it made rental payments to investor-trailer owners of $613.021; made payments to gasoline station operators of $118,400; and incurred additional "operating expenses" of $668,698.The $613,021 paid to trailer owners included payments to investors whose trailers had not yet been obtained and put into the system. In order to make the necessary payments to trailer owners and station operators, respondent had not only borrowed money from its officers, directors, and stockholders, but also had used funds obtained for purchase of new trailers. Virtually all the trailers were purchased from an affiliate in which respondent's officers and directors had interests. Many of these trailers proved defective in design, or otherwise unsuitable for rental. About a year prior to the filing of respondent's Chapter XI proceeding, this manufacturing affiliate became bankrupt, owing respondent approximately $200,000 for trailers that were never manufactured and an additional amount of approximately $150,000 for trailers that were manufactured but never delivered. These latter trailers had been mortgaged by the affiliate to a third party who took possession upon the affiliate's bankruptcy. In addition, in June, 1961, some 100 trailers, as to which respondent, although obligated by the lease-back arrangements to do so, did not have insurance coverage, were unlocatable, and considered lost. Finally, certain funds received from investors for the purchase of trailers had been at an earlier period, misappropriated by a member or members of respondent's management. Respondent's executive vice president, who estimated this misappropriation loss to be at least $141,000, attributed it "almost completely" to a deceased member of the original management group, but did not feel "qualified to make [the] judgment" that the two remaining members Page 379 U. S. 601 of that group, including one who owned over 15% of respondent's common stock, could be held liable.At the time of filing its Chapter XI petition, respondent stated its total assets as $685,608, of which $500,000 represented the stated estimated "value" of its trailer-rental system, an intangible asset. It stated in its petition that its trailer-rental system (which then consisted of arrangements with some 500 service station operator agents) "was built by [respondent] at an estimated cost of $500,000," despite the fact that respondent's balance sheet in 1961 showed the cost of establishing a system of 700 stations as only $33,750, and that, in 1961, respondent had estimated that the cost of establishing an additional 800 rental stations would be only $56,000. The total liabilities were stated at $1,367,890, of which $710,597 was owed to trailer owners under their leasing agreements; $200,677 was owed to the investors who had paid for trailers that had never been manufactured;.$71,805 was owed to trade and other general creditors; and $285,277 was owed to respondent's officers and directors.Under the proposed plan of arrangement submitted by respondent, the investor-trailer owners were to exchange their entire interests (their rights in the trailers as well as the amounts owed them under the rental agreements) for stock of Capitol on the basis of one share of stock for each $2 of "remaining capital investment in the trailers," which sum was to be determined by deducting from the original purchase price of the trailers the amount, if any, which the owners had received as rental payments. [Footnote 5] Respondent's officers and directors, as well as trade and other general creditors, were to receive one share of stock Page 379 U. S. 602 for each $3.50 of their claims. Respondent itself, in exchange for transferring to Capitol its trailer-rental system, was to receive 107,000 shares which it would then distribute to its stockholders. Finally, obligations to two banks, totaling $55,558, although clearly unsecured, were to be paid in full, presumably because the officers and directors of respondent would otherwise have been liable as guarantors of these obligations.If this plan were approved and all of the investor-trailer owners participated, a total of approximately 866,000 shares of Capitol's stock would be issued to them, but approximately 81,500 shares would be issued directly to the officers and directors of respondent, 22,400 to trade and other general creditors, and 107,000 to respondent itself to be distributed to its stockholders. More than 60% of respondent's stock was held by eight men, seven of whom are officers and directors and the eighth one of the original promoters of the venture.The SEC then filed a motion, under § 328 of the Bankruptcy Act, to dismiss the Chapter XI proceeding or, in effect, transfer it to Chapter X on the ground that it should have been brought under Chapter X of the Bankruptcy Act, and thus Chapter XI is not available. A referee in bankruptcy to whom, as a special master, the motion was referred recommended that it be denied on the grounds that the Commission had not made "a sufficient showing to warrant the granting of the Section 328 motion." At his hearing on this matter, the District Judge recognized that, in light of the fact that the investor-trailer owners were widely scattered and the nature of their individual holdings was small, the proposed plan's issuance of approximately 15% of Capitol's stock to respondent's officers and directors would mean that they, rather than the investor-trailer owners, would have effective control over Capitol, and expressed his "disapproval" of such a result. He also expressed disapproval Page 379 U. S. 603 of preferential treatment of the banks in order to avoid the obligations of the officer and director guarantors. [Footnote 6] The District Court, however, "accepted and adopted" the referee's findings, and denied the motion without a written opinion. The Court of Appeals affirmed, holding that,"since the granting of the motion rests in the discretion of the [district] court, while we think this is a border-line case, it does not appear that the S.E.C. has shown that adequate relief is not obtainable in Chapter XI proceedings or that there has been an abuse of that discretion warranting reversal."325 F.2d 47, 52. We granted certiorari, 376 U.S. 948.IIThe background and operative procedures of each, and the interrelationship between them have been reviewed by this Court in SEC v. United States Realty & Improvement Co., 310 U. S. 434, and General Stores Corp. v. Shlensky, 350 U. S. 462. This background was detailed in United States Realty, supra, as follows:Before passage, in 1934, of § 77B of the Bankruptcy Act, 48 Stat. 912, bankruptcy procedures offered no facilities for corporate rehabilitation, which therefore was left to equity receiverships, with their attendant paraphernalia of creditors' and security holders' committees, and of rival plans of reorganization. Lack of judicial control of the conditions attending formulation of the plans, inadequate protection of widely scattered security holders, frequent adoption of plans which favored Page 379 U. S. 604 management at the expense of other interests and which afforded the corporation only temporary respite from financial collapse, so often characteristic of equity receivership reorganizations, led to the enactment of § 77B. See S.Doc.No. 65, 72d Cong., 1st Sess., 90; H.R.Rep.No.1409, 75th Cong., 1st Sess., 2. As does the present Chapter X, § 77B permitted the adjustment of all interests in the debtor, secured creditors, unsecured creditors, and stockholders.The day preceding the enactment of § 77B, Congress had created the Securities and Exchange Commission as a special agency charged with the function of protecting the investing public, 48 Stat. 885, as amended, 15 U.S.C. § 78d (1958 ed.). At the urging of, and based on extensive studies by, the SEC, § 77B was, in 1938, revised and enacted in changed form as Chapter X. 52 Stat. 883-905. The aims of Chapter X as thus revised were to afford greater protection to creditors and stockholders by providing greater judicial control over the entire proceedings and impartial and expert administrative assistance in corporate reorganizations through appointment of a disinterested trustee and the active participation of the SEC. The trustee in a Chapter X proceeding [Footnote 7] is required to make a thorough examination and study of the debtor's financial problems and management, Bankruptcy Act, §§ 167(3), (5), and then transmit his independent report to the creditors, stockholders, the SEC, and others. Following this, the trustee gives notice to all creditors and stockholders to submit to him proposals for a plan of reorganization. §§ 167(5), (6). The trustee then formulates a plan of reorganization, which he presents to the court. If the court finds the plan worthy of consideration, Page 379 U. S. 605 it may refer it to the SEC for its opinion, and must so refer it where the debtor's liabilities exceed $3,000,000. § 172. When the proposed plan, after approval by the court, is finally submitted to the debtor's creditors and stockholders, it is accompanied by the advisory report of the SEC, as well as the opinion of the judge who approved the plan. § 175. As to each class of creditors and stockholders whose rights are affected by the plan, the plan must receive the approval of the holders of two-thirds in amount of each class of creditors' claims, and, if the debtor has not been found to be insolvent, the holders of a majority of each class of stock. § 179. The plan becomes effective upon final confirmation by the court, based on a finding, inter alia, that "the plan is fair and equitable." § 221.As part of the same Act in which Chapter X was enacted, Congress also, in 1938, enacted Chapter XI. 52 Stat. 905-916. Chapter XI is a statutory variation of the common law composition of creditors and, unlike the broader scope of Chapter X, is limited to an adjustment of unsecured debts. It was sponsored by the National Association of Credit Men and other groups of creditors' representatives whose experience had been in representing trade creditors in small and middle-sized commercial failures. See Hearings before the House Committee on the Judiciary on H.R. 6439 (reintroduced as H.R. 8046 and enacted in 1938), 75th Cong., 1st Sess., 31, 35; 13 J.N.A.Ref.Bankr. (1938). The contrast between the provisions of Chapter X, carefully designed to protect the creditor and stockholder interests involved, and the summary provisions of Chapter XI is quite marked. The formulation of the plan of arrangement, and indeed the entire Chapter XI proceeding, for all practical purposes, is in the hands of the debtor, subject only to the requisite consent of a majority in number and amount of unsecured Page 379 U. S. 606 creditors, § 362, and the ultimate finding by the court that the plan is, inter alia, "for the best interests of the creditors," § 366. [Footnote 8]"The process of formulating an arrangement and the solicitation of consent of creditors, sacrifices to speed and economy every safeguard, in the interest of thoroughness and disinterestedness, provided in Chapter X."United States Realty, supra, at 310 U. S. 450-451. The debtor generally remains in possession and operates the business under court supervision, § 342. A trustee is only provided in the very limited situation where a trustee in bankruptcy has previously been appointed, [Footnote 9] § 332. There is no requirement for a receiver, but the Court "may" appoint one if it finds it to be "necessary," § 332. The plan of arrangement is proposed by, and only by, the debtor, §§ 306(1), 323, 357, and creditors have only the choice of accepting or rejecting it. Acceptances may be solicited by the debtor even before filing of the Chapter XI petition, and, in fact, must be solicited before court review of the plan, § 336(4). There are no provisions for an independent study by the court or a trustee, or for advice by them being given to creditors in advance of the acceptance of the arrangement. In short, Chapter XI provides a summary procedure whereby judicial confirmation is obtained on a plan that has been formulated and accepted with only a bare minimum of independent control or supervision. This, of course, is consistent with the basic purpose of Chapter XI: to provide a quick and economical means of facilitating simple compositions among general creditors who have been Page 379 U. S. 607 deemed by Congress to need only the minimal disinterested protection provided by that Chapter.In enacting these two distinct methods of corporate rehabilitations, Congress has made it quite clear that Chapters X and XI are not alternate routes, the choice of which is in the hands of the debtor. Rather, they are legally, mutually exclusive paths to attempted financial rehabilitation. A Chapter X petition may not be filed unless "adequate relief" is not obtainable under Chapter XI, § 146(2). Likewise, a Chapter XI petition is to be dismissed, or in effect transferred, if the proceedings "should have been brought" under Chapter X, § 328.IIIThe SEC here contends that, as an absolute rule, all proceedings for the financial rehabilitation of a corporate debtor which would alter the rights of public investor creditors must be in Chapter X. Respondent, on the other hand, contends that there is no such absolute rule, and that the determination of whether proceedings, on the facts of a particular case, should be in Chapter X or in Chapter XI rests in the discretion of the District Court, which discretion should not be reversed unless it is found to have been clearly abused. Both parties rely on United States Realty, supra, and General Stores Corp., supra, for their respective contentions.United States Realty involved a corporation with publicly owned debentures, publicly owned mortgage certificates, and publicly owned stock, which proposed a plan of arrangement that would have left the debentures and stock unaffected but would have both extended the time for payment of the publicly held mortgage certificates and reduced their interest rate. The SEC there argued that Chapter X is the exclusive avenue for financial rehabilitation of large corporations with many stockholders. Page 379 U. S. 608 While rejecting this argument as an absolute matter, the Court recognized that,"in general . . . , the two chapters were specifically devised to afford different procedures, the one [Chapter X] adapted to the reorganization of corporations with complicated debt structures and many stockholders, the other [Chapter XI] to composition of debts of small individual businesses and corporations with few stockholders. . . ."310 U.S. at 310 U. S. 447. The Court then held that, as the proposed plan of arrangement adversely affected the rights of many widely scattered public creditors, to-wit, the holders of mortgage certificates, the formulation of a plan with the judicial control, statutory SEC participation, and employment of disinterested trustees assured by Chapter X would better serve "the public and private interests concerned including those of the debtor," id. at 310 U. S. 455, than would the formulation of a Chapter XI plan under the almost complete control of the debtor. In reaching this result, the Court explored at great length the safeguards of Chapter X and their protection of public investors:"The basic assumption of Chapter X and other acts administered by the Commission is that the investing public, dissociated from control or active participation in the management, needs impartial and expert administrative assistance in the ascertainment of facts, in the detection of fraud, and in the understanding of complex financial problems."Id. at 310 U. S. 448-449, n. 6.Applying these principles, the Court therefore reversed the Court of Appeals' affirmance of the District Court's refusal to dismiss a Chapter XI proceeding which the SEC had challenged on the grounds that it should have been brought under Chapter X.It should be noted that, prior to United States Realty, a bill had been introduced in Congress to draw a numerical Page 379 U. S. 609 line that would close Chapter XI to any corporation which had any class of its securities owned by 100 or more creditors or stockholders. See Hearing before Special Subcommittee on Bankruptcy and Reorganization of the House Committee on the Judiciary on H.R. 9864, 76th Cong., 3d Sess. In reporting out the bill, the Subcommittee stated:"Sections 4, 5, 6, and 7 of the bill, which are eliminated by the last of your committee's amendments, provided for amendments to chapter XI of the Bankruptcy Act which were designed to prevent corporations which are publicly indebted or owned from filing a petition for an arrangement under chapter XI, rather than a petition for reorganization under chapter X, the chapter specially designed for the reorganization of such corporations, and to establish a numerical test of such 'public' indebtedness or ownership.""Your committee believes that, while the amendments proposed by sections 4, 5, 6, and 7 are desirable, the element of emergency requiring their immediate passage has been eliminated by the decision of the United States Supreme Court in Securities and Exchange Commission v. U.S. Realty and Improvement Company. That decision was rendered on May 27, 1940, after the introduction of the bill. Since immediate action on these proposals does not appear to be necessary, the last of your committee's amendments provides for the striking out of sections 4, 5, 6, and 7. The committee's conclusion is supported by all of the witnesses who testified at the hearings before the committee's Subcommittee on Bankruptcy and Reorganization, and also by the report of the Securities and Exchange Commission on the bill."H.R.Rep.No. 2372, 76th Cong., 3d Sess., 2. Page 379 U. S. 610In General Stores Corp. v. Shlensky, supra, a corporation with over 2,000,000 shares of common stock, held by over 7,000 shareholders, but with no publicly held debt of any kind, petitioned under Chapter XI for an arrangement of its unsecured debt, consisting of obligations to trade creditors and one private investor. The District Court had held, with the Court of Appeals affirming, that Chapter XI was unavailable, as the debtor needed more extensive reorganization than merely a simple arrangement with unsecured creditors. This Court affirmed. In so doing, the Court again rejected the SEC's argument that, as an absolute matter, Chapter XI is not available where the debtor is publicly owned.The Court stated:"It may well be that, in most cases where the debtor's securities are publicly held, c. X will afford the more appropriate remedy. But that is not necessarily so. A large company with publicly held securities may have as much need for a simple composition of unsecured debts as a smaller company. And there is no reason we can see why c. XI may not serve that end. The essential difference is not between the small company and the large company, but between the needs to be served."350 U.S. at 350 U. S. 466.The Court pointed out that the "needs to be served" included such factors as requirements of fairness to public debt holders, need for a trustee's evaluation of an accounting from management or determination that new management is necessary, and the need to readjust a complicated debt structure requiring more than a simple composition of unsecured debt. Id. at 350 U. S. 466-467.IVWe agree with the parties that the principles of United States Realty and General Stores apply to and govern the result in this case. We reaffirm the holdings of these Page 379 U. S. 611 cases that there is no absolute rule that Chapter X must be utilized in every case in which the corporate debtor is publicly owned. As this Court has recognized, Congress has drawn no such hard-and-fast line between the two Chapters. The SEC, purporting to bow to these holdings, urges in this case, however, a variation of its "absolute rule" argument that, while not requiring Chapter X in all cases in which the debtor is publicly owned, would require the use of Chapter X in 100% of the cases involving the rights of public investor creditors.It argues, in support of this variation of its absolute rule, that to hold otherwise would deprive the investor creditors of Chapter X's protection of the "fair and equitable" requirement of a plan. As noted above, whereas Chapter X contains the proviso that a plan must be "fair and equitable," Chapter XI only requires that it be "for the best interests of the creditors." The words "fair and equitable" are "words of art" which mean that senior interests are entitled to full priority over junior ones and, in particular,"that, in any plan of corporate reorganization, unsecured creditors are entitled to priority over stockholders to the full extent of their debts, and that any scaling down of the claims of creditors without some fair compensating advantage to them which is prior to the rights of stockholders is inadmissible."United States Realty, supra, 310 U.S. at 310 U. S. 452. The SEC's argument, however, is premised on the assertion, for which we can find no support in either the language or legislative history of Chapters X and XI, that Congress has deemed it necessary in all cases involving public investor creditors that they have the protection of the "fair and equitable" doctrine. In fact, the requirement that a plan be "fair and equitable" was part of Chapter XI, as well as Chapter X, until 1952, when Congress deleted it from Chapter XI and replaced it with the requirement that the plan be "for the best interests of the creditors." Congress clearly deemed this Page 379 U. S. 612 latter requirement to be sufficient protection in a proceeding properly in Chapter XI in light of the general philosophy of Chapter XI to expedite "simple" compositions. See S.Rep.No. 1395, 82d Cong., 2d Sess., 10, 11-12; H.R.Rep.No. 2320, 82d Cong., 2d Sess., 19, 20-21. There is no indication that, in so doing, Congress intended in any way to change the law on the interrelationship between Chapters X and XI. In fact, the history is just the opposite. [Footnote 10] In the same Act that deleted the "fair and equitable" requirement from Chapter XI, Congress expressly codified, in § 328, the rule of United States Realty providing for dismissal, or, in effect transfer, of a Chapter XI proceeding if it "should have been brought" in Chapter X. Nothing in this even suggests transfer as an absolute rule to give Chapter X's "fair and equitable" protection to all cases involving public investors, which, presumably, if Congress had so intended, it would have so stated. Moreover, as noted above, supra, pp. 379 U. S. 608-609, a House subcommittee previously approved the United States Realty holding of a general, but not absolute, rule, and had not reported out a bill that would have drawn an absolute line. [Footnote 11]The SEC further argues that Chapter X is required in all cases involving public investor creditors, because its right to intervene in a Chapter XI proceeding is limited solely to moving under § 328 for a transfer to Chapter X. Page 379 U. S. 613 We reject this argument. The District Court in this case quite properly recognized that the SEC was not so limited in a Chapter XI proceeding, and we hold that, under the statutory scheme, while not charged with express statutory rights and responsibilities as in Chapter X, the SEC is entitled to intervene and be heard in a Chapter XI proceeding. We therefore reject the SEC's variation of its "absolute rule" argument, advanced in this case, that would require the use of Chapter X in all cases in which the rights of public investor creditors are involved. The short answer is that, as with the SEC's original absolute rule argument, Congress has drawn no such absolute line of demarcation between Chapters X and XI.This does not mean, however, that we disagree with the holding of United States Realty that, although there is no absolute rule requiring that Chapter X be utilized in every case in which the debtor is publicly owned, or even where publicly held debt is adjusted, as a general rule, Chapter X is the appropriate proceeding for adjustment of publicly held debt. See SEC v. Canandaigua Enterprises Corp., 339 F.2d 14 (C.A.2d Cir.). Not only do we not disagree with this holding, but we expressly reaffirm it. [Footnote 12] Public investors are, as here, generally widely scattered and are far less likely than trade creditors to be aware of the financial condition and cause Page 379 U. S. 614 of the collapse of the debtor. They are less commonly organized in groups or committees capable of protecting their interests. They do not have the same interest as to trade creditors in continuing the business relations with the debtor. Where debt is publicly held, the SEC is likely, as here, to have become familiar with the debtor's finances, indicating the desirability of its performing its full Chapter X functions. It seems clear that, in enacting Chapter X, Congress had the protection of public investors, and not trade creditors, primarily in mind. As noted above, Chapter X is one of many Acts in which the SEC has the statutory right and responsibility to protect public investors. [Footnote 13] Finally, again it is clear that Congress was thinking of Chapter XI as primarily concerned with adjustment of the rights of trade creditors when it deemed the "fair and equitable" doctrine to be unnecessary to "simple" compositions in Chapter XI. [Footnote 14]General Stores indicates the narrow limits within which there are exceptions to this general rule that the rights of public investor creditors are to be adjusted only under Chapter X. "Simple" compositions are still to be effected under Chapter XI. Such a situation, even where public debt is directly affected, may exist, for example, where the public investors are few in number and familiar with the operations of the debtor, or where, although the public investors are greater in number, the adjustment of their debt is relatively minor, consisting, for example, of a short extension of time for payment.On the other hand, General Stores also makes it clear that, even though there may be no public debt materially Page 379 U. S. 615 and directly affected, Chapter X is still the appropriate proceeding where the debtor has widespread public stockholders and the protections of the public and private interests involved afforded by Chapter X are required because, for example, there is evidence of management misdeeds for which an accounting might be made, there is a need for new management, or the financial condition of the debtor requires more than a simple composition of its unsecured debts.Applying the above principles, it is obvious that Chapter X is the appropriate proceeding for the attempted rehabilitation of respondent in this case. Here, public debts are being adjusted. The investors are many and widespread, not few in number intimately connected with the debtor, and the adjustment is quite major, and certainly not minor. These facts alone would require Chapter X proceedings under the above-stated principles. In addition there is here, as we have previously pointed out, substantial evidence of misappropriation of assets, and not only is there a need for a complete corporate reorganization, but it is obvious that the proposed plan of arrangement is just that. The trailer owners are exchanging their entire interests, including a sale of their trailers, in exchange for stock in a new corporation, in which other creditors of respondent, including respondent's officers and directors, as well as respondent itself, will have substantial interests. Indeed, this is the same complete reorganization, except that the plan here gives the public investor creditors even less than was previously offered, see note 5 supra, that the SEC previously stopped as a public offering on the grounds that the offering material contained false and misleading information. The Court of Appeals itself recognized, 325 F.2d at 53,"that if the stock involved here were not part of an arrangement, the disclosures made with regard to it [in soliciting the trailer owners' consents to the plan] would be clearly Page 379 U. S. 616 inadequate. No authority has been found which would indicate that recipients of stock issued in connection with an arrangement are not entitled to as much information as are those persons acquiring stock under ordinary conditions."We agree.Indeed, the facts of this case aptly demonstrate the need for Chapter X protection as a general rule on the above-stated principles. There is clearly a need for a study by a disinterested trustee to make a thorough examination of respondent's financial problems and management and submit a full report to the public investor creditors. Respondent has never operated profitably, has always been in precarious financial condition, and apparently was hopelessly insolvent, in both the bankruptcy and equity sense, when the arrangement was proposed. At an earlier period, its management apparently misappropriated substantial corporate funds. Most of the trailers were purchased from an affiliated company; a large number of them, although paid for, were either not manufactured or, if manufactured, were not delivered. The affiliated company is bankrupt. Only approximately two-thirds of the $3,587,439 contributed by the public investors for the purchase of trailers was used for that purpose; the balance apparently having been drained off in high commissions taken by the management on the sale of the trailers to the public. Portions of these commissions on new trailer sales were, in turn, used by the management to pay prior purchasers of trailers the rentals which they had been promised. When respondent filed its petition for an arrangement, its stated liabilities of $1,367,890 were approximately double its stated assets of $685,608; with even most of the latter ($500,000) representing the alleged "estimated" value of the trailer rental system, i.e., the debtor's arrangements with the service station operators. The District Court itself recognized that"there may be in this situation need Page 379 U. S. 617 for new management, and there certainly is some question . . . as to whether or not the management that is presently . . . operating it would continue to do so for the best interests of the investors."It did not find, however, that Chapter X was necessary, since this need for new management had "not been clearly established yet." One of the purposes of Chapter X is to give the independent trustee the opportunity to conduct a searching inquiry so as to "clearly establish" whether or not new management is necessary when there is, as here, a substantial basis for such a belief. See General Stores, supra, at 350 U. S. 466. Finally, it is clear that there is need for an independent investigation of possible causes of action against the past and present management of respondent, and it is as true now as when Chapter X was enacted that "a debtor in possession cannot be expected to investigate itself." Hearings before House Committee on the Judiciary on H.R. 6439, 75th Cong., 1st Sess., 176 (my Brother DOUGLAS then testifying as Chairman of the SEC).Respondent, however, contends that Chapter X is not here appropriate, as the time and expense involved in such a proceeding would be too great. This is, however, just another way of stating the natural preference of a debtor's management for the "speed and economy" of Chapter XI, to the "thoroughness and disinterestedness" of Chapter X. In this area, as with other statutes designed to protect the investing public, [Footnote 15] Congress has made the determination that the disinterested protection of the public investor outweighs the self-interest "needs" of corporate management for so-called "speed and economy." In fact, experience in this area has confirmed the view of Congress that the thoroughness and disinterestedness assured by Chapter X not only result in greater protection Page 379 U. S. 618 for the investing public, but often in greater ultimate savings for all interests, public and private, than do the so-called "speed and economy" of Chapter XI. See Twenty-Eighth Annual Report of the SEC 98 (1963); Twenty-Ninth Annual Report of the SEC 90-91 (1964); Note, 69 Harv.L.Rev. 352, 357-360 (1955). Moreover, the requirements of Chapter X are themselves sufficiently flexible so that the District Court can act to keep expenses within proper bounds and insure expedition in the proceedings. [Footnote 16] We also reject respondent's further argument that the time and expense of a Chapter X proceeding would be so great that the ultimate result might be straight bankruptcy liquidation, which, respondent contends, "would mean probable total loss for [the] trailer owners." In addition to the above answers to respondent's "general time and expense" argument, we feel compelled to point out, without indicating any opinion as to the ultimate outcome of the attempted financial rehabilitation in this case, that it must be recognized that Chapters X and XI were not designed to prolong -- without good reason and at the expense of the investing public -- the corporate life of every debtor suffering from terminal financial ills. See Fidelity Assurance Assn. v. Sims, 318 U. S. 608. [Footnote 17] Page 379 U. S. 619Finally, respondent argues that the District Court's decision that Chapter XI was the appropriate proceeding here should be affirmed on the basis that it was not a clear abuse of discretion. Respondent relies on certain language in the General Stores opinion in support of this contention. However, in making this contention, it clearly misreads that opinion and misconceives its holding and import. Nothing in that opinion supports respondent's view that the issue of whether Chapter X or Chapter XI is required permits open-ended discretion by a district court to decide on a case-by-case basis, without reliance on the principles which we have here reaffirmed, whether, in its opinion, it would be better for a particular debtor to be in Chapter X or Chapter XI. [Footnote 18] We agree with the statement of the Court of Appeals for the Second Circuit in a recent decision that such open-ended Page 379 U. S. 620 discretion would be bound to result in decisions reflecting the "particular experience and predilections" of the district judge involved. SEC v. Canandaigua Enterprises Corp., supra, at 19."The consequence, particularly in a multi-judge district, would be that the substantial rights of the parties would depend on the accident of the calendar -- in defiance of the memorable admonition, 'It will not do to decide the same question one way between one set of litigants and the opposite way between another,' Cardozo, The Nature of the Judicial Process 33 (1921)."Ibid. We therefore also reject this contention of respondent. [Footnote 19]Applying the above-stated principles, it is clear that, in this case, the motion by the SEC to dismiss, or, in effect, to transfer the proceedings to Chapter X, should have been granted. [Footnote 20] Therefore, the judgment of the Court of Appeals is reversed, and the case remanded to that court for proceedings consistent with this opinion.Reversed

U.S. Supreme CourtSEC v. American Trailer Rentals Co., 379 U.S. 594 (1965)Securities and Exchange Commission v.American Trailer Rentals Co.No. 35Argued November 10, 1964Decided January 18, 1965379 U.S. 594SyllabusRespondent company, which was in the trailer rental business, was financed by arranging for the sale of trailers to investors on a lease-back agreement. The trailers were placed by respondent at hundreds of gasoline stations which acted as rental agents. The Securities and Exchange Commission (SEC) blocked the further offering of the sale and lease-back agreements without a registration statement, which never became effective. Respondent's vice president then formed a new corporation which sought to exchange its stock for the investor creditors' trailers, but the SEC suspended the exemption from registration for small offerings because there was reasonable cause to believe there were false statements in the material used in making the offer. Respondent then filed a petition and proposed plan of arrangement under Chapter XI of the Bankruptcy Act. The petition showed that respondent never operated at a profit, that it owed large sums to trailer investors, that it made payments to investors whose trailers had not been obtained, that it purchased all trailers from an affiliate which had gone bankrupt owing it money, that 100 trailers were lost, and that substantial funds had been misappropriated. The SEC filed a motion under § 328 of the Bankruptcy Act to transfer the proceeding to Chapter X. A referee in bankruptcy, acting as special master, recommended denial of the motion on the ground that the SEC had not made a sufficient showing. The District Court, although expressing disapproval of the proposed stock arrangement and the preferential treatment of unsecured bank loans, accepted the referee's findings and denied the motion. The Court of Appeals affirmed, holding that the District Court did not abuse its discretion in this borderline case and the SEC did not show that adequate relief was not available under Chapter XI.Held:1. In Chapters X and XI, Congress enacted two distinct methods of corporate rehabilitation which are mutually exclusive. Pp. 379 U. S. 604-607. Page 379 U. S. 595(a) Chapter X affords greater protection to creditors and stockholders by providing judicial control over the entire proceedings and impartial and expert assistance in corporate reorganizations through disinterested trustees and the active participation of the SEC. Pp. 379 U. S. 604-605.(b) Chapter XI is a summary procedure, usually under the control of the debtor, limited to an adjustment of unsecured debts, with only a bare minimum of control or supervision. Pp. 379 U. S. 605-607.(c) These are not alternate routes, with the choice in the debtor's hands. P. 379 U. S. 607.(d) A Chapter X petition may not be filed unless "adequate relief" is not obtainable under Chapter XI. P. 379 U. S. 607.(e) A Chapter XI petition is to be dismissed, or in effect transferred, if the proceedings should have been brought under Chapter X. P. 379 U. S. 607.2. While there is no absolute rule that Chapter X be used in every case in which the debtor is publicly owned, or where publicly held debt is adjusted, as a general rule, Chapter X is the appropriate proceeding for adjusting publicly held debt. SEC v. United States Realty & Improvement Co., 310 U. S. 434, followed. Pp. 379 U. S. 613-614.(a) Public investors are generally widely scattered, and are far less likely than trade creditors to be aware of the financial condition and cause of the collapse of the debtor; they are less commonly organized in groups or committees capable of protecting their interests; they do not have the same interest as do trade creditors in continuing the business relations with the debtor; and, where debt is publicly held, the SEC is likely to have become familiar with the debtor's finances, indicating the desirability of its performing its full Chapter X functions. Pp. 379 U. S. 613-614.(b) In enacting Chapter X, Congress had the protection of public investors, and not trade creditors, primarily in mind. P. 379 U. S. 614.3. There are only narrow limits within which there are exceptions to this general rule that the rights of public investor creditors are to he adjusted only under Chapter X. "Simple" compositions are still to be effected under Chapter XI; such situations may exist even where public debt is directly affected, for example, where the public investors are few in number and familiar with the operations of the debtor, or where, although the public investors are greater in number, the adjustment of their debt is relatively minor. P. 379 U. S. 614. Page 379 U. S. 5964. Even where there is no public debt problem, Chapter X is appropriate where there are widespread public stockholders needing the protection offered thereby, such as accounting for mismanagement or obtaining a change in management, or where the financial condition requires more than a simple composition of unsecured debts. General Stores Corp. v. Shlensky, 350 U. S. 462, followed. Pp. 614-615.5. Here, where public debts are being adjusted, the investors are many, widespread, and not intimately connected with the debtor, and the adjustment is major, it is obvious on the above-stated principles that Chapter X is the appropriate proceeding for the debtor's attempted rehabilitation. P. 379 U. S. 615.6. The contention that Chapter X is not here appropriate, as the time and expense involved in such a proceeding would be too great, is just another way of stating the natural preference of a debtor's management for the "speed and economy" of Chapter XI to the "thoroughness and disinterestedness" of Chapter X, which preference has been rejected by the determination of Congress that the disinterested protection of the public investor outweighs the self-interest "needs" of corporate management for so-called "speed and economy." Pp. 379 U. S. 617-618.(a) Experience in this area has confirmed the view of Congress that the thoroughness and disinterestedness assured by Chapter X not only results in greater protection for the investing public, but often in greater ultimate savings for all interests, public and private, than does the so-called "speed and economy" of Chapter XI. Pp. 379 U. S. 617-618.(b) The requirements of Chapter X are themselves sufficiently flexible so that the District Court can act to keep expenses within proper bounds and insure expedition in the proceedings. P. 379 U. S. 618.(c) Chapters X and XI were not designed to prolong -- without good reason and at the expense of the investing public -- the corporate life of every debtor suffering from terminal financial ills. P. 379 U. S. 618.7. District courts do not have open-ended discretion to decide in each case whether it is better for a debtor to be in Chapter X or Chapter XI, but must decide the issue pursuant to the principles here reaffirmed. Pp. 379 U. S. 619-620.325 F.2d 47, reversed and remanded. Page 379 U. S. 597

1999_99-699

Syllabuscompeting interests of the Boy Scouts and the State. Rather, the Court applies an analysis similar to the traditional First Amendment analysis it applied in Hurley. A state requirement that the Boy Scouts retain Dale would significantly burden the organization's right to oppose or disfavor homosexual conduct. The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the freedom of expressive association. In so ruling, the Court is not guided by its view of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of an organization's expression does not justify the State's effort to compel the organization to accept members in derogation of the organization's expressive message. While the law may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem. Hurley, supra, at 579. Pp. 647-661.160 N. J. 562, 734 A. 2d 1196, reversed and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 663. SOUTER, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 700.George A. Davidson argued the cause for petitioners.With him on the briefs were Carla A. Kerr, David K. Park, Michael W McConnell, and Sanford D. Brown.Evan Wolfson argued the cause for respondent. With him on the brief were Ruth E. Harlow, David Buckel, Jon W Davidson, Beatrice Dohrn, Patricia M. Logue, Thomas J. Moloney, Allyson W Haynes, and Lewis H. Robertson.**Briefs of amici curiae urging reversal were filed for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice et al. by Jay Alan Sekulow, Vincent McCarthy, John P. Tuskey, and Laura B. Hernandez; for the American Civil Rights Union by Peter J. Ferrara; for the Becket Fund for Religious Liberty by Kevin J. Hasson and Eric W Treene; for the California State Club Association et al. by William I. Edlund; for the Center for the Original Intent of the Constitution by Michael P. Farris; for the Christian Legal Society et al. by Kimberlee Wood Colby and Carl H. Esbeck; for the Claremont Institute Center643CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioners are the Boy Scouts of America and the Monmouth Council, a division of the Boy Scouts of America (col-for Constitutional Jurisprudence by Edwin Meese III; for the Eagle Forum Education & Legal Defense Fund et al. by Erik S. Jaffe; for the Family Defense Council et al. by William E. Fay III; for the Family Research Council by Janet M. LaRue; for Gays and Lesbians for Individual Liberty by William H. Mellor, Clint Bolick, and Scott G. Bullock; for the Individual Rights Foundation by Paul A. Hoffman and Patrick J. Manshardt; for the Institute for Public Mfairs of the Union of Orthodox Jewish Congregations of America by Nathan J. Diament; for the Liberty Legal Institute by Kelly Shackelford and George B. Flint; for the National Catholic Committee on Scouting et al. by Von G. Keetch; for the National Legal Foundation by Barry C. Hodge; for the Pacific Legal Foundation by John H. Findley; for Public Advocate of the United States et al. by William J. Olson and John S. Miles; for the United States Catholic Conference et al. by Mark E. Chopko and Jeffrey Hunter Moon; and for John J. Hurley et al. by Chester Darling, Michael Williams, and Dwight G. Duncan.Briefs of amici curiae urging affirmance were filed for the State of New Jersey by John J. Farmer, Jr., Attorney General, Jeffrey Burstein, Senior Deputy Attorney General, and Charles S. Cohen, Deputy Attorney General; for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, and Adam L. Aronson, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Earl I. Anzai of Hawaii, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Philip T. McLaughlin of New Hampshire, W A. Drew Edmondson of Oklahoma; Hardy Myers of Oregon, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the city of Atlanta et al. by Peter T. Barbur, Sara M. Darehshori, James K. Hahn, David I. Schulman, Jeffrey L. Rogers, Madelyn F. Wessel, Thomas J. Berning, Lawrence E. Rosenthal, Benna Ruth Solomon, Michael D. Hess, Leonard J. Koerner, Florence A. Hutner, and Louise Renne; for the American Association of School Administrators et al. by Mitchell A. Karlan; for the American Bar Association by William G. Paul and Robert H. Murphy; for the American Civil Liberties Union et al. by Matthew A. Coles, Steven R. Shapiro, Sara L. Mandelbaum, and Lenora M. Lapidus; for the American Jewish Congress by Marc D. Stern; for the American Psychological Association by Paul M. Smith, Nory Miller, James L. McHugh, and Nathalie F. P. Gil-644lectively, Boy Scouts). The Boy Scouts is a private, not-forprofit organization engaged in instilling its system of values in young people. The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill. Respondent is James Dale, a former Eagle Scout whose adult membership in the Boy Scouts was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. The New Jersey Supreme Court held that New Jersey's public accommodations law requires that the Boy Scouts readmit Dale. This case presents the question whether applying New Jersey's public accommodations law in this way violates the Boy Scouts' First Amendment right of expressive association. We hold that it does.IJames Dale entered Scouting in 1978 at the age of eight by joining Monmouth Council's Cub Scout Pack 142. Dale became a Boy Scout in 1981 and remained a Scout until he turned 18. By all accounts, Dale was an exemplary Scout. In 1988, he achieved the rank of Eagle Scout, one of Scouting's highest honors.Dale applied for adult membership in the Boy Scouts in 1989. The Boy Scouts approved his application for the position of assistant scoutmaster of Troop 73. Around the same time, Dale left home to attend Rutgers University. After arriving at Rutgers, Dale first acknowledged to himself andfoyle; for the American Public Health Association et al. by Marvin E. Frankel, Jeffrey S. Trachtman, and Kerri Ann Law; for Bay Area Lawyers for Individual Freedom et al. by Edward W Swanson and Paula A. Brantner; for Deans of Divinity Schools and Rabbinical Institutions by David A. Schulz; for the National Association for the Advancement of Colored People by Dennis C. Hayes and David T. Goldberg; for Parents, Families, and Friends of Lesbians and Gays, Inc., et al. by John H. Pickering, Daniel H. Squire, and Carol J. Banta; for the Society of American Law Teachers by Nan D. Hunter and David Cole; and for Roland Pool et al. by David M. Gische and Merril Hirsh.Michael D. Silverman filed a brief for the General Board of Church and Society of the United Methodist Church et al.645others that he is gay. He quickly became involved with, and eventually became the copresident of, the Rutgers University Lesbian/Gay Alliance. In 1990, Dale attended a seminar addressing the psychological and health needs of lesbian and gay teenagers. A newspaper covering the event interviewed Dale about his advocacy of homosexual teenagers' need for gay role models. In early July 1990, the newspaper published the interview and Dale's photograph over a caption identifying him as the copresident of the Lesbian/ Gay Alliance.Later that month, Dale received a letter from Monmouth Council Executive James Kay revoking his adult membership. Dale wrote to Kay requesting the reason for Monmouth Council's decision. Kay responded by letter that the Boy Scouts "specifically forbid membership to homosexuals." App. 137.In 1992, Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court. The complaint alleged that the Boy Scouts had violated New Jersey's public accommodations statute and its common law by revoking Dale's membership based solely on his sexual orientation. New Jersey's public accommodations statute prohibits, among other things, discrimination on the basis of sexual orientation in places of public accommodation. N. J. Stat. Ann. §§ 10:5-4 and 10:5-5 (West Supp. 2000); see Appendix, infra, at 661-663.The New Jersey Superior Court's Chancery Division granted summary judgment in favor of the Boy Scouts. The court held that New Jersey's public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation, and that, alternatively, the Boy Scouts is a distinctly private group exempted from coverage under New Jersey's law. The court rejected Dale's common-law claim, holding that New Jersey's policy is embodied in the public accommodations law. The court also concluded that the Boy Scouts' position in respect of active homosexuality was clear646and held that the First Amendment freedom of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an adult leader.The New Jersey Superior Court's Appellate Division affirmed the dismissal of Dale's common-law claim, but otherwise reversed and remanded for further proceedings. 308 N. J. Super. 516, 706 A. 2d 270 (1998). It held that New Jersey's public accommodations law applied to the Boy Scouts and that the Boy Scouts violated it. The Appellate Division rejected the Boy Scouts' federal constitutional claims.The New Jersey Supreme Court affirmed the judgment of the Appellate Division. It held that the Boy Scouts was a place of public accommodation subject to the public accommodations law, that the organization was not exempt from the law under any of its express exceptions, and that the Boy Scouts violated the law by revoking Dale's membership based on his avowed homosexuality. After considering the state-law issues, the court addressed the Boy Scouts' claims that application of the public accommodations law in this case violated its federal constitutional rights "'to enter into and maintain ... intimate or private relationships ... [and] to associate for the purpose of engaging in protected speech.'" 160 N. J. 562, 605, 734 A. 2d 1196, 1219 (1999) (quoting Board of Directors of Rotary lnt'l v. Rotary Club of Duarte, 481 U. S. 537, 544 (1987)). With respect to the right to intimate association, the court concluded that the Boy Scouts' "large size, nonselectivity, inclusive rather than exclusive purpose, and practice of inviting or allowing nonmembers to attend meetings, establish that the organization is not 'sufficiently personal or private to warrant constitutional protection' under the freedom of intimate association." 160 N. J., at 608-609, 734 A. 2d, at 1221 (quoting Duarte, supra, at 546). With respect to the right of expressive association, the court "agree[d] that Boy Scouts expresses a belief in moral values and uses its activities to encourage the moral development647of its members." 160 N. J., at 613, 734 A. 2d, at 1223. But the court concluded that it was "not persuaded ... that a shared goal of Boy Scout members is to associate in order to preserve the view that homosexuality is immoral." Ibid., 734 A. 2d, at 1223-1224 (internal quotation marks omitted). Accordingly, the court held "that Dale's membership does not violate the Boy Scouts' right of expressive association because his inclusion would not 'affect in any significant way [the Boy Scouts'] existing members' ability to carry out their various purposes.'" Id., at 615, 734 A. 2d, at 1225 (quoting Duarte, supra, at 548). The court also determined that New Jersey has a compelling interest in eliminating "the destructive consequences of discrimination from our society," and that its public accommodations law abridges no more speech than is necessary to accomplish its purpose. 160 N. J., at 619-620,734 A. 2d, at 1227-1228. Finally, the court addressed the Boy Scouts' reliance on Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), in support of its claimed First Amendment right to exclude Dale. The court determined that Hurley did not require deciding the case in favor of the Boy Scouts because "the reinstatement of Dale does not compel Boy Scouts to express any message." 160 N. J., at 624, 734 A. 2d, at 1229.We granted the Boy Scouts' petition for certiorari to determine whether the application of New Jersey's public accommodations law violated the First Amendment. 528 U. S. 1109 (2000).IIIn Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984), we observed that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." This right is crucial in preventing the majority from imposing its views on groups that would648rather express other, perhaps unpopular, ideas. See ibid. (stating that protection of the right to expressive association is "especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority"). Government actions that may unconstitutionally burden this freedom may take many forms, one of which is "intrusion into the internal structure or affairs of an association" like a "regulation that forces the group to accept members it does not desire." Id., at 623. Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, "[f]reedom of association ... plainly presupposes a freedom not to associate." Ibid.The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13 (1988). But the freedom of expressive association, like many freedoms, is not absolute. We have held that the freedom could be overridden "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." Roberts, supra, at 623.To determine whether a group is protected by the First Amendment's expressive associational right, we must determine whether the group engages in "expressive association." The First Amendment's protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private.Because this is a First Amendment case where the ultimate conclusions of law are virtually inseparable from findings of fact, we are obligated to independently review the649factual record to ensure that the state court's judgment does not unlawfully intrude on free expression. See Hurley, supra, at 567-568. The record reveals the following. The Boy Scouts is a private, nonprofit organization. According to its mission statement:"It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential."The values we strive to instill are based on those found in the Scout Oath and Law:"Scout Oath "On my honor I will do my best"To do my duty to God and my country "and to obey the Scout Law;"To help other people at all times;"To keep myself physically strong, "mentally awake, and morally straight."Scout Law"A Scout is:"Trustworthy         Obedient"Loyal         Cheerful "Helpful         Thrifty "Friendly         Brave "Courteous         Clean "Kind         Reverent." App. 184.Thus, the general mission of the Boy Scouts is clear: "[T]o instill values in young people." Ibid. The Boy Scouts seeks to instill these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like camping, archery, and fishing. During the time spent with the youth members, the scoutmasters and assistant scoutmasters inculcate them with the Boy650Scouts' values-both expressly and by example. It seems indisputable that an association that seeks to transmit such a system of values engages in expressive activity. See Roberts, supra, at 636 (O'CONNOR, J., concurring) ("Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement").Given that the Boy Scouts engages in expressive activity, we must determine whether the forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts' ability to advocate public or private viewpoints. This inquiry necessarily requires us first to explore, to a limited extent, the nature of the Boy Scouts' view of homosexuality.The values the Boy Scouts seeks to instill are "based on" those listed in the Scout Oath and Law. App. 184. The Boy Scouts explains that the Scout Oath and Law provide "a positive moral code for living; they are a list of 'do's' rather than 'don'ts.'" Brief for Petitioners 3. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly with the values represented by the terms "morally straight" and "clean."Obviously, the Scout Oath and Law do not expressly mention sexuality or sexual orientation. See supra, at 649. And the terms "morally straight" and "clean" are by no means self-defining. Different people would attribute to those terms very different meanings. For example, some people may believe that engaging in homosexual conduct is not at odds with being "morally straight" and "clean." And others may believe that engaging in homosexual conduct is contrary to being "morally straight" and "clean." The Boy Scouts says it falls within the latter category.The New Jersey Supreme Court analyzed the Boy Scouts' beliefs and found that the "exclusion of members solely on the basis of their sexual orientation is inconsistent with Boy651Scouts' commitment to a diverse and 'representative' membership ... [and] contradicts Boy Scouts' overarching objective to reach 'all eligible youth.'" 160 N. J., at 618, 734 A. 2d, at 1226. The court concluded that the exclusion of members like Dale "appears antithetical to the organization's goals and philosophy." Ibid. But our cases reject this sort of inquiry; it is not the role of the courts to reject a group's expressed values because they disagree with those values or find them internally inconsistent. See Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 124 (1981) ("[A]s is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational"); see also Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 714 (1981) ("[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection").The Boy Scouts asserts that it "teach[es] that homosexual conduct is not morally straight," Brief for Petitioners 39, and that it does "not want to promote homosexual conduct as a legitimate form of behavior," Reply Brief for Petitioners 5. We accept the Boy Scouts' assertion. We need not inquire further to determine the nature of the Boy Scouts' expression with respect to homosexuality. But because the record before us contains written evidence of the Boy Scouts' viewpoint, we look to it as instructive, if only on the question of the sincerity of the professed beliefs.A 1978 position statement to the Boy Scouts' Executive Committee, signed by Downing B. Jenks, the President of the Boy Scouts, and Harvey L. Price, the Chief Scout Executive, expresses the Boy Scouts' "official position" with regard to "homosexuality and Scouting":"Q. Mayan individual who openly declares himself to be a homosexual be a volunteer Scout leader?652"A. No. The Boy Scouts of America is a private, membership organization and leadership therein is a privilege and not a right. We do not believe that homosexuality and leadership in Scouting are appropriate. We will continue to select only those who in our judgment meet our standards and qualifications for leadership." App.453-454.Thus, at least as of 1978-the year James Dale entered Scouting-the official position of the Boy Scouts was that avowed homosexuals were not to be Scout leaders.A position statement promulgated by the Boy Scouts in 1991 (after Dale's membership was revoked but before this litigation was filed) also supports its current view:"We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts." Id., at 457.This position statement was redrafted numerous times but its core message remained consistent. For example, a 1993 position statement, the most recent in the record, reads, in part:"The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. We do not believe that homosexuals provide a role model consistent with these expectations. Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA." Id., at 461.The Boy Scouts publicly expressed its views with respect to homosexual conduct by its assertions in prior litigation. For example, throughout a California case with similar facts filed in the early 1980's, the Boy Scouts consistently asserted the same position with respect to homosexuality that it asserts today. See Curran v. Mount Diablo Council of Boy653Scouts of America, No. C-365529 (Cal. Super. Ct., July 25, 1991); 48 Cal. App. 4th 670, 29 Cal. Rptr. 2d 580 (1994); 17 Cal. 4th 670, 952 P. 2d 218 (1998). We cannot doubt that the Boy Scouts sincerely holds this view.We must then determine whether Dale's presence as an assistant scoutmaster would significantly burden the Boy Scouts' desire to not "promote homosexual conduct as a legitimate form of behavior." Reply Brief for Petitioners 5. As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression. See, e. g., La Follette, supra, at 123-124 (considering whether a Wisconsin law burdened the National Party's associational rights and stating that "a State, or a court, may not constitutionally substitute its own judgment for that of the Party"). That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts who have "become leaders in their community and are open and honest about their sexual orientation." App. 11. Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.Hurley is illustrative on this point. There we considered whether the application of Massachusetts' public accommodations law to require the organizers of a private St. Patrick's Day parade to include among the marchers an IrishAmerican gay, lesbian, and bisexual group, GLIB, violated the parade organizers' First Amendment rights. We noted that the parade organizers did not wish to exclude the GLIB members because of their sexual orientations, but because they wanted to march behind a GLIB banner. We observed:654"[A] contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals .... The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control." 515 U. S., at 574-575.Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not "promote homosexual conduct as a legitimate form of behavior." Reply Brief for Petitioners 5. As the presence of GLIB in Boston's St. Patrick's Day parade would have interfered with the parade organizers' choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scout's choice not to propound a point of view contrary to its beliefs.The New Jersey Supreme Court determined that the Boy Scouts' ability to disseminate its message was not significantly affected by the forced inclusion of Dale as an assistant scoutmaster because of the following findings:"Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is immoral; Boy Scouts discourages its leaders from disseminating any views on sexual issues; and Boy Scouts includes sponsors and members who subscribe to different views655in respect of homosexuality." 160 N. J., at 612, 734 A. 2d, at 1223.We disagree with the New Jersey Supreme Court's conclusion drawn from these findings.First, associations do not have to associate for the "purpose" of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection. For example, the purpose of the St. Patrick's Day parade in Hurley was not to espouse any views about sexual orientation, but we held that the parade organizers had a right to exclude certain participants nonetheless.Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues-a fact that the Boy Scouts disputes with contrary evidence-the First Amendment protects the Boy Scouts' method of expression. If the Boy Scouts wishes Scout leaders to avoid questions of sexuality and teach only by example, this fact does not negate the sincerity of its belief discussed above.Third, the First Amendment simply does not require that every member of a group agree on every issue in order for the group's policy to be "expressive association." The Boy Scouts takes an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes. In this same vein, Dale makes much of the claim that the Boy Scouts does not revoke the membership of heterosexual Scout leaders that openly disagree with the Boy Scouts' policy on sexual orientation. But if this is true, it is irrelevant.1 The presence of an avowed homosexual and gay1 The record evidence sheds doubt on Dale's assertion. For example, the National Director of the Boy Scouts certified that "any persons who advocate to Scouting youth that homosexual conduct is" consistent with Scouting values will not be registered as adult leaders. App. 746 (emphasis added). And the Monmouth Council Scout Executive testified that the656rights activist in an assistant scoutmaster's uniform sends a distinctly different message from the presence of a heterosexual assistant scoutmaster who is on record as disagreeing with Boy Scouts policy. The Boy Scouts has a First Amendment right to choose to send one message but not the other. The fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection.Having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect its expression, we inquire whether the application of New Jersey's public accommodations law to require that the Boy Scouts accept Dale as an assistant scoutmaster runs afoul of the Scouts' freedom of expressive association. We conclude that it does.State public accommodations laws were originally enacted to prevent discrimination in traditional places of public accommodation-like inns and trains. See, e. g., Hurley, supra, at 571-572 (explaining the history of Massachusetts' public accommodations law); Romer v. Evans, 517 U. S. 620, 627-629 (1996) (describing the evolution of public accommodations laws). Over time, the public accommodations laws have expanded to cover more places.2 New Jersey's statu-advocacy of the morality of homosexuality to youth members by any adult member is grounds for revocation of the adult's membership. Id., at 761.2 Public accommodations laws have also broadened in scope to cover more groups; they have expanded beyond those groups that have been given heightened equal protection scrutiny under our cases. See Romer, 517 U. S., at 629. Some municipal ordinances have even expanded to cover criteria such as prior criminal record, prior psychiatric treatment, military status, personal appearance, source of income, place of residence, and political ideology. See 1 Boston, Mass., Ordinance No. § 12-9.7 (1999) (ex-offender, prior psychiatric treatment, and military status); D. C. Code Ann. § 1-2519 (1999) (personal appearance, source of income, place of residence); Seattle, Wash., Municipal Code § 14.08.090 (1999) (political ideology).657tory definition of" '[a] place of public accommodation'" is extremely broad. The term is said to "include, but not be limited to," a list of over 50 types of places. N. J. Stat. Ann. § 10:5-5(l) (West Supp. 2000); see Appendix, infra, at 661663. Many on the list are what one would expect to be places where the public is invited. For example, the statute includes as places of public accommodation taverns, restaurants, retail shops, and public libraries. But the statute also includes places that often may not carry with them open invitations to the public, like summer camps and roof gardens. In this case, the New Jersey Supreme Court went a step further and applied its public accommodations law to a private entity without even attempting to tie the term "place" to a physical location.3 As the definition of "public accommodation" has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.We recognized in cases such as Roberts and Duarte that States have a compelling interest in eliminating discrimination against women in public accommodations. But in each of these cases we went on to conclude that the enforcement of these statutes would not materially interfere with the ideas that the organization sought to express. In Roberts, we said "[i]ndeed, the Jaycees has failed to demonstrate ...3 Four State Supreme Courts and one United States Court of Appeals have ruled that the Boy Scouts is not a place of public accommodation. Welsh v. Boy Scouts of America, 993 F.2d 1267 (CA7), cert. denied, 510 U. S. 1012 (1993); Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal. 4th 670, 952 P. 2d 218 (1998); Seabourn v. Coronado Area Council, Boy Scouts of America, 257 Kan. 178, 891 P. 2d 385 (1995); Quinnipiac Council, Boy Scouts of America, Inc. v. Comm'n on Human Rights & Opportunities, 204 Conn. 287, 528 A. 2d 352 (1987); Schwenk v. Boy Scouts of America, 275 Ore. 327, 551 P. 2d 465 (1976). No federal appellate court or state supreme court-except the New Jersey Supreme Court in this case-has reached a contrary result.658any serious burdens on the male members' freedom of expressive association." 468 U. S., at 626. In Duarte, we said:"[I]mpediments to the exercise of one's right to choose one's associates can violate the right of association protected by the First Amendment. In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members' ability to carry out their various purposes." 481 U. S., at 548 (internal quotation marks and citations omitted).We thereupon concluded in each of these cases that the organizations' First Amendment rights were not violated by the application of the States' public accommodations laws.In Hurley, we said that public accommodations laws "are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments." 515 U. S., at 572. But we went on to note that in that case "the Massachusetts [public accommodations] law has been applied in a peculiar way" because "any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own." Id., at 572-573. And in the associational freedom cases such as Roberts, Duarte, and New York State Club Assn., after finding a compelling state interest, the Court went on to examine whether or not the application of the state law would impose any "serious burden" on the organization's rights of expressive association. So in these cases, the associational interest in freedom of expression has659been set on one side of the scale, and the State's interest on the other.Dale contends that we should apply the intermediate standard of review enunciated in United States v. O'Brien, 391 U. S. 367 (1968), to evaluate the competing interests. There the Court enunciated a four-part test for review of a governmental regulation that has only an incidental effect on protected speech-in that case the symbolic burning of a draft card. A law prohibiting the destruction of draft cards only incidentally affects the free speech rights of those who happen to use a violation of that law as a symbol of protest. But New Jersey's public accommodations law directly and immediately affects associational rights, in this case associational rights that enjoy First Amendment protection. Thus, O'Brien is inapplicable.In Hurley, we applied traditional First Amendment analysis to hold that the application of the Massachusetts public accommodations law to a parade violated the First Amendment rights of the parade organizers. Although we did not explicitly deem the parade in Hurley an expressive association, the analysis we applied there is similar to the analysis we apply here. We have already concluded that a state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organization's right to oppose or disfavor homosexual conduct. The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association. That being the case, we hold that the First Amendment prohibits the State from imposing such a requirement through the application of its public accommodations law.44 We anticipated this result in Hurley when we illustrated the reasons for our holding in that case by likening the parade to a private membership organization. 515 U. S., at 580. We stated: "Assuming the parade660JUSTICE STEVENS' dissent makes much of its observation that the public perception of homosexuality in this country has changed. See post, at 699-700. Indeed, it appears that homosexuality has gained greater societal acceptance. See ibid. But this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not. See, e. g., Texas v. Johnson, 491 U. S. 397 (1989) (holding that Johnson's conviction for burning the American flag violates the First Amendment); Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam) (holding that a Ku Klux Klan leader's conviction for advocating unlawfulness as a means of political reform violates the First Amendment). And the fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.JUSTICE STEVENS' extolling of Justice Brandeis' comments in New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting opinion); see post, at 664, 700, confuses two entirely different principles. In New State Ice, the Court struck down an Oklahoma regulation prohibiting the manufacture, sale, and distribution of ice without a license. Justice Brandeis, a champion of state experimentation in the economic realm, dissented. But Justice Brandeis was never a champion of state experimentation in the suppression of free speech. To the contrary, his First Amendment commentary provides compelling support for the Court's opinion in this case. In speaking of the Founders of this Nation, Justice Brandeis emphasized that they "believed that free-to be large enough and a source of benefits (apart from its expression) that would generally justify a mandated access provision, GLIB could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members." Id., at 580-581.661dom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth." Whitney v. California, 274 U. S. 357, 375 (1927) (concurring opinion). He continued:"Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed." Id., at 375-376.We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message. "While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government." Hurley, 515 U. S., at 579.The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1999SyllabusBOY SCOUTS OF AMERICA ET AL. v. DALECERTIORARI TO THE SUPREME COURT OF NEW JERSEY No. 99-699. Argued April 26, 2000-Decided June 28, 2000Petitioners are the Boy Scouts of America and its Monmouth Council (collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Respondent Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. He filed suit in the New Jersey Superior Court, alleging, inter alia, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. That court's Chancery Division granted summary judgment for the Boy Scouts, but its Appellate Division reversed in pertinent part and remanded. The State Supreme Court affirmed, holding, inter alia, that the Boy Scouts violated the State's public accommodations law by revoking Dale's membership based on his avowed homosexuality. Among other rulings, the court held that application of that law did not violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion would not significantly affect members' ability to carry out their purposes; determined that New Jersey has a compelling interest in eliminating the destructive consequences of discrimination from society, and that its public accommodations law abridges no more speech than is necessary to accomplish its purpose; and distinguished Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, on the ground that Dale's reinstatement did not compel the Boy Scouts to express any message.Held: Applying New Jersey's public accommodations law to require the Boy Scouts to readmit Dale violates the Boy Scouts' First Amendment right of expressive association. Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group's internal affairs by forcing it to accept a member it does not desire. Roberts v. United States Jaycees, 468 U. S. 609, 623. Such forced membership is unconstitutional if the person's presence affects in a significant way the group's ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13. However, the freedom of expressive association is not absolute; it can be overridden by regulations adopted to serve compelling641state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Roberts, 468 U. S., at 623. To determine whether a group is protected, this Court must determine whether the group engages in "expressive association." The record clearly reveals that the Boy Scouts does so when its adult leaders inculcate its youth members with its value system. See id., at 636. Thus, the Court must determine whether the forced inclusion of Dale would significantly affect the Boy Scouts' ability to advocate public or private viewpoints. The Court first must inquire, to a limited extent, into the nature of the Boy Scouts' viewpoints. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and that the organization does not want to promote homosexual conduct as a legitimate form of behavior. The Court gives deference to the Boy Scouts' assertions regarding the nature of its expression, see Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 123-124. The Court then inquires whether Dale's presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary to its beliefs. See Hurley, 515 U. S., at 576-577. This Court disagrees with the New Jersey Supreme Court's determination that the Boy Scouts' ability to disseminate its message would not be significantly affected by the forced inclusion of Dale. First, contrary to the state court's view, an association need not associate for the purpose of disseminating a certain message in order to be protected, but must merely engage in expressive activity that could be impaired. Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues, its method of expression is protected. Third, the First Amendment does not require that every member of a group agree on every issue in order for the group's policy to be "expressive association." Given that the Boy Scouts' expression would be burdened, the Court must inquire whether the application of New Jersey's public accommodations law here runs afoul of the Scouts' freedom of expressive association, and concludes that it does. Such a law is within a State's power to enact when the legislature has reason to believe that a given group is the target of discrimination and the law does not violate the First Amendment. See, e. g., id., at 572. The Court rejects Dale's contention that the intermediate standard of review enunciated in United States v. O'Brien, 391 U. S. 367, should be applied here to evaluate the642Full Text of Opinion

1965_282

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The case before us presents interesting problems of a jurisdictional nature. The Suits in Admiralty Act [Footnote 1] vests exclusive jurisdiction in the district courts when the suit is of a maritime nature. Under the Tucker Act, [Footnote 2] the Court of Claims has jurisdiction over contractual claims against the United States. This jurisdictional interaction presents itself here.The petitioners are employees of various federal executive departments working aboard government vessels. They filed contractual actions in the Court of Claims, alleging they were entitled to back pay increases and overtime pay for their labors, invoking various federal pay statutes and regulations. In all these suits, the petitioners predicated jurisdiction on the Tucker Act, which has a generous six-year limitations period and provides a grace period as well, 28 U.S.C. § 2501 (1964 ed.). Their employer, the United States, filed motions to have the actions transferred to various federal district courts on the ground that the claims were of a maritime nature, and justiciable exclusively under the Suits in Admiralty Act. This Act provides only two years for claimants to file suit, and also requires exhaustion of administrative remedies, 46 U.S.C. § 745 (1964 ed.). The Court of Claims granted the motions without opinion, simply citing to three unreported cases in which it had made similar dispositions. To uphold this transfer would bar those claims which accrued more than two years prior to the time the actions were filed. We granted certiorari, 382 U.S. 810, and reverse.On its face, the Tucker Act permits all individuals with contractual claims against the Government to sue in the Court of Claims. The Suits in Admiralty Act similarly Page 384 U. S. 160 affords an open berth in the district courts, provided the claims are of a maritime nature. The question is which Act should be applicable to the claims brought here, and this, in turn, depends on whether these seafaring petitioners are more appropriately classified as federal workers or as mere seamen.The Government takes the position that these employees are to be deprived of the liberal benefits of the longer limitations period available to all other government employees under the Tucker Act. This is so, the Government reasons, because, for purposes of wage claims, the petitioners' status as seamen overrides their acknowledged role as federal workers. In assuming this posture, the Government seeks the best of both worlds. Congress is depicted as ambivalent in treating these petitioners either as seamen or as federal employees depending on which status may redound more to the benefit of the Government's proprietary interest.The Government acknowledges that the petitioners are governed by a patchwork pattern of federal statutes which encompass many facets of their economic welfare. With regard to so-called fringe benefits, pervasive government schemes provide for sick leave and vacation pay, [Footnote 3] and for death, health, medical and pension programs. [Footnote 4] The petitioners' potential recovery for personal injuries is limited strictly by a workmen's compensation statute governing them as federal workers to the exclusion of both the Public Vessels Act, [Footnote 5] Johansen v. United States, Page 384 U. S. 161 343 U. S. 427, and the Suits in Admiralty Act, Patterson v. United States, 359 U. S. 495. By virtue of their governmental employment, the petitioners' right to join unions and to select bargaining representatives, unlike that of private seamen, exists only by express leave of the President, Exec. Order No. 10988, 27 Fed.Reg. 551 (1962), and they are forbidden, under pain of discharge, fine and imprisonment, from exercising or asserting the right to strike, 69 Stat. 624, 5 U.S.C. §§ 118p-118r (1964 ed.).When it comes to wage claims, the Government treats the petitioners, to their detriment, as seamen. The workers, however, have their wages fixed by federal statutes and regulations, like other federal employees. It is true that their rates of pay are geared to the prevailing wage scale in private shipping operations, [Footnote 6] but this factor diminishes upon analysis. A host of federal workers, like these seamen, have their rates of pay so adjusted. [Footnote 7] The petitioners, then, are essentially no different Page 384 U. S. 162 from the civil servants who deliver the mail, fight forest fires, construct public buildings, or who engage in countless other tasks which affect virtually every phase of the country's wellbeing. The wage scale of government-employed seamen is fixed by federal agencies; it is not automatically adjusted to the rate of pay prevalent in private industry, and, in some cases, the private pay rates are not easily ascertained. Further, these government employees -- unlike normal seamen -- benefit from wage pay increases won in the private industry only prospectively and to a limited degree. Often, in the maritime industry, private contract negotiations continue beyond the terminal date set in a collective bargaining agreement. When the agreement is signed, however, it generally provides that the private seamen receive the increased pay retroactively. The government seamen receive pay increases only from the actual date agreement is reached in the private sector. Therefore, the backpay claims are more appropriately catalogued on the government side of the ledger, although they may have a salty tang.This inference as to congressional intent is reinforced in considering the claims for overtime pay. Here, there is a specific provision -- Section 205 of the Federal Employees Pay Act of 1945 [Footnote 8] -- which fixes the ratio of overtime pay to the employees' basic pay. Congress has thus Page 384 U. S. 163 explicitly prescribed that overtime pay should be fixed in a uniform manner for all government wage-board employees, whether seamen or not. Furthermore, in determining the applicability of this uniform statutory requirement, the court will be interpreting the pay regulation of an executive department. This task is typically within the province and expertise of the Court of Claims.We think the foregoing indicates that, with respect to these wage claims, Congress thought of these petitioners more as government employees who happened to be seamen than as seamen who by chance worked for the Government. The remaining problems relate to specific legislative amendments. The Government approaches this by noting that the Suits in Admiralty Act specifically repealed the Tucker Act so far as the two conflicted. This may readily be conceded, see, e.g., Calmar S.S. Corp. v. United States, 345 U. S. 446, 345 U. S. 455-456; Matson Navigation Co. v. United States, 284 U. S. 352. Compare Patterson v. United States, 359 U. S. 495. From this proposition, it adduces the principle that exclusive admiralty jurisdiction is now so deeply woven in the fabric of the law that congressional action is required to overturn it, cf. State Bd. of Ins. v. Todd Shipyards Corp., 370 U. S. 451, 370 U. S. 458. This principle is sound where applicable, but such is not the case here.The evolution of the law, both statutory and judicial, indicates that at least until 1960, the jurisdiction of the Court of Claims over government seamen's wage claims was unchallenged. We do not understand the Government to dispute this fact. For example, wage claims by federal employees were found to be expressly within the ambit of the Tucker Act in Bruner v. United States, 343 U. S. 112, 343 U. S. 115. In United States v. Townsley, 323 U. S. 557, this Court affirmed a judgment against the Government for overtime wages in favor of a government-employed operator of a dredge. The Court of Claims Page 384 U. S. 164 had assumed jurisdiction over the suit, 101 Ct.Cl. 237, and the Government never disputed the issue. Subsequent cases are to the same effect. [Footnote 9] It was on this line of precedent that the petitioners relied in bringing suit. This fact is worthy of mention to illustrate the impact upon claimants whose suits would otherwise be time-barred if we were now to hold that the Suits in Admiralty Act restricted all suits in cases like the present to the district courts, cf. Brady v. Roosevelt S.S. Co., 317 U. S. 575, 317 U. S. 581.In 1960, Congress addressed itself to the jurisdictional overlap between the Tucker Act and the Suits in Admiralty Act. Its major aim was to empower the Court of Claims to transfer suits to the district courts when the latter had exclusive jurisdiction over them. This it accomplished by providing that when the transfer was made, the original filing in the Court of Claims would toll the applicable limitations period, Act of Sept. 13, 1960, Pub.L. 86-770, 74 Stat. 912, 28 U.S.C. § 1506. Simultaneously, Congress abolished the distinction between public and merchant vessels, a matter which had sorely confused attorneys and had caused misfilings in the past, S.Rep. No. 1894, 86th Cong., 2d Sess., pp. 3, 6. In amending the Suits in Admiralty Act, Congress also wanted to affirm the existing law that suits which were justiciable exclusively under it would be brought only in the district courts. The new § 2 of the Act, 46 U.S.C. § 742, in the words of the Senate Report, S.Rep. No. 1894, supra, at p. 2,"restates in brief and simple language the now existing exclusive jurisdiction conferred on the district Page 384 U. S. 165 courts, both on their admiralty and law sides, over cases against the United States which could be sued on in admiralty if private vessels, persons, or property were involved. [Footnote 10]"The Government would have us believe that this oblique reference to private "persons" was designed to make inroads on the right of government employees to sue in the Court of Claims. We reject this argument. The legislative history surrounding this enactment contains no discussion whatever concerning claims brought by government-employed seamen. This is highly significant because of the active interest in nautical legislation generally taken by the maritime labor unions. If Congress had meant to lower the limitations period from six to two years, surely these unions would have been privy to the decision; this is all the more true when one considers that seamen are often stationed far away from their home ports, and need a lengthy period in which to register their claims. If they were governed by the maritime Act, they would be required not only to sue, but to exhaust administrative remedies as well within the shorter period, 46 U.S.C. § 745 (1964 ed.).In effect, the Government asks us to repeal the former practice by implication. We have held in numerous cases that such a request bears a heavy burden of persuasion, Page 384 U. S. 166 e.g., Bulova Watch Co. v. United States, 365 U. S. 753, 365 U. S. 758; Fourco Glass Co. v. Transmirra Corp., 353 U. S. 222, 353 U. S. 228-229. Further, Congress had the opportunity in 1964 to deprive government-employed claimants of their rights when it amended the Tucker Act itself. Instead, Congress broadened the forums available to plaintiffs suing the Government for fees, salary or compensation for official services, giving the district courts concurrent jurisdiction with the Court of Claims in matters of less than $10,000, 78 Stat. 699, 28 U.S.C. § 1346(d) (1964 ed.).As in other jurisdictional questions involving intersecting statutes, there is no positive answer. We can do no more than to exercise our best judgment in interpreting the will of Congress. In this instance, we believe the traditional treatment of federal employees by the Government tips the balance in favor of Court of Claims jurisdiction. The Court of Claims possesses the expertise necessary to adjudicate government wage claims. It also serves as a centralized forum for developing the law, particularly in large wage claim suits. These tasks have been its responsibility since 1887. In multi-party wage suits of large amounts, having one forum eliminates any problem of transferring venue from several district courts to one locale, see 28 U.S.C. § 1406 (1964 ed.). If we are here misconstruing the intent of Congress, it can easily set the matter to rest by explicit language. We therefore reverse and remand the suits to the Court of Claims for further proceedings.It is so ordered

U.S. Supreme CourtAmell v. United States, 384 U.S. 158 (1966)Amell v. United StatesNo. 282Argued January 24, 1966Decided May 16, 1966384 U.S. 158SyllabusPetitioners, federal employees working aboard government vessels, filed actions for wages in the Court of Claims, predicating jurisdiction on the Tucker Act, which permits suits in that court on contractual claims against the Government, and has a six-year statute of limitations. The Court of Claims granted respondent's motion to transfer the actions to various federal district courts on the ground that the claims were maritime in nature and justiciable solely under the Suits in Admiralty Act, with a two-year statute of limitations.Held:1. As demonstrated by statutes concerning wages of other government employees, Congress has traditionally treated employees like petitioners as public servants, rather than as seamen. Pp. 384 U. S. 161-163.2. While the Suits in Admiralty Act was enacted after the Tucker Act, and would repeal the latter in case of conflict, the jurisdiction of the Court of Claims over suits such as these was unchallenged at least until 1960, and, in amending both statutes then, Congress did not indicate that it wished to deprive government-employed claimants of their rights under the Tucker Act. Pp. 163-165.170 Ct.Cl. 898 reversed and remanded. Page 384 U. S. 159

1968_798

MR. JUSTICE BLACK delivered the opinion of the Court.In this action, the United States District Court at Montgomery, Alabama, ordered the local Montgomery County Board of Education to bring about a racial desegregation Page 395 U. S. 226 of the faculty and the staff of the local county school system. 289 F. Supp. 647 (1968). Dissatisfied with the District Court's order, the board appealed. A panel of the Court of Appeals affirmed the District Court's order but, by a two-to-one vote, modified it in part, 400 F.2d 1 (1968). [Footnote 1] A petition for rehearing en banc was denied by an evenly divided court, six to six, thereby leaving standing the modifications in the District Court's order made by the panel. [Footnote 2] On petitions of the United States as intervenor below in No. 798, and the individual plaintiffs in No. 997, we granted certiorari. 393 U.S. 1116 (1969).Fifteen years ago, on May 17, 1954, we decided that segregation of the races in the public schools is unconstitutional. Brown v. Board of Education, 347 U. S. 483 (Brown I). In that case, we left undecided the manner in which the transition from segregated to unitary school systems would be achieved, and set the case down for another hearing, inviting the Attorney General of the United States and the Attorneys General of the States providing for racial segregation in the public schools to present their views on the best ways to implement and enforce our judgment. We devoted four days to the argument on this single problem, and all the affected parties were given the opportunity to present their views at length. After careful consideration of the many viewpoints so fully aired by the parties, we announced our decision in Brown II, 349 U. S. 294 (1955). We held that the primary responsibility for abolishing the system of segregated schools would rest with the local school authorities. In some of the States that argued before us, the laws permitted, but did not require, racial segregation, Page 395 U. S. 227 and we noted that, in some of these States, "substantial steps to eliminate racial discrimination in public schools have already been taken. . . ." Id. at 349 U. S. 299. Many other States had for many years maintained a completely separate system of schools for whites and nonwhites, and the laws of these States, both civil and criminal, had been written to keep this segregated system of schools inviolate. The practices, habits, and customs had for generations made this segregated school system a fixed part of the daily life and expectations of the people. Recognizing these indisputable facts, we neither expected nor ordered that a complete abandonment of the old and adoption of a new system be accomplished overnight. The changes were to be made "at the earliest practicable date," and with "all deliberate speed." Id. at 349 U. S. 300, 349 U. S. 301. We were not content, however, to leave this task in the unsupervised hands of local school authorities, trained as most would be under the old laws and practices, with loyalties to the system of separate white and Negro schools. As we stressed then,"[I]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them."Id. at 349 U. S. 300. The problem of delays by local school authorities during the transition period was therefore to be the responsibility of courts, local courts so far as practicable, those courts to be guided by traditional equitable flexibility to shape remedies in order to adjust and reconcile public and private needs. These courts were charged in our Brown II opinion, id. at 349 U. S. 300, with a duty to:"require that the defendants [local school authorities] make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests Page 395 U. S. 228 upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date."The record shows that neither Montgomery County nor any other area in Alabama voluntarily took any effective steps to integrate the public schools for about 10 years after our Brown I opinion. In fact, the record makes clear that the state government and its school officials attempted in every way possible to continue the dual system of racially segregated schools in defiance of our repeated unanimous holdings that such a system violated the United States Constitution. [Footnote 3]There the matter stood in Alabama in May, 1964, when the present action was brought by Negro children and their parents, with participation by the United States as amicus curiae. Apparently, up to that time, Montgomery County, and indeed all other schools in the State, had operated, so far as actual racial integration was concerned, as though our Brown cases had never been decided. Obviously voluntary integration by the local school officials in Montgomery had not proved to be even partially successful. Consequently, if Negro children of school age were to receive their constitutional rights as we had declared them to exist, the coercive assistance of courts was imperatively called for. So, after preliminary procedural matters were disposed of, answers filed, and issues joined, a trial took place. On July 31, 1964, District Judge Johnson handed down an opinion and entered an Page 395 U. S. 229 order. 232 F. Supp. 705. The judge found that, at the time:"There is only one school district for Montgomery County, Alabama, with the County Board of Education and the Superintendent of Education of Montgomery County, Alabama, exercising complete control over the entire system. In this school system, for the school year 1963-64, there were in attendance approximately 16,000 Negro children and approximately 25,000 white children. In this system, the Montgomery County Board of Education owns and operates approximately 77 schools.""From the evidence in this case, this Court further specifically finds that, through policy, custom and practice, the Montgomery County Board of Education, functioning at the present time through the named individual defendants, operates a dual school system based upon race and color; that is to say, that, through this policy, practice and custom, these officials operate one set of schools to be attended exclusively by Negro students and one set of schools to be attended exclusively by white students. The evidence further reflects that the teachers are assigned according to race; Negro teachers are assigned only to schools attended by Negro students and white teachers are assigned only to schools attended by white students."232 F. Supp. at 707. Based on his findings, Judge Johnson ordered that integration of certain grades begin in September, 1964, but, in this first order, did not require efforts to desegregate the faculty. The school board, acting under the State's school placement law, finally admitted eight Negro students out of the 29 who had sought transfers to white schools under the judge's July 31 order. The judge refused to order admission of the 21 Negro students Page 395 U. S. 230 whose transfer applications had been rejected by the school officials.The 1964 initial order of Judge Johnson was followed by yearly proceedings, opinions, and orders by him. [Footnote 4] Hearings, preceding these additional orders, followed the filing each year under the judge's direction of a report of the school board's plans for proceeding with desegregation. These annual reports and orders, together with transcripts of the discussions at the hearings, seem to reveal a growing recognition on the part of the school board of its responsibility to achieve integration as rapidly as practicable. The record, however, also reveals that, in some areas, the board was not moving as rapidly as it could to fulfill this duty, and the record shows a constant effort by the judge to expedite the process of moving as rapidly as practical toward the goal of a wholly unitary system of schools not divided by race as to either students or faculty. During these years of what turned out to be an exchange of ideas between judge and school board officials, the judge, from time to time, found it possible to compliment the board on its cooperation with him in trying to bring about a fully integrated school system. Some of these complimentary remarks are set out in the opinion of the Court of Appeals modifying the judge's decree. 400 F.2d at 3, n. 3. On the other hand, the board did not see eye to eye with Judge Johnson on the speed with which segregation should be wiped out "root and branch," as we have held it must be done. Green v. County School Board, 391 U. S. 430, 391 U. S. 438 (1968). The school board, having to face the "complexities arising from the transition to a system of public education freed of racial discrimination," Brown II, 349 U.S. at 349 U. S. 299, was constantly sparring for Page 395 U. S. 231 time; the judge, upon whom was thrust the difficult task of insuring the achievement of complete integration at the earliest practicable date, was constantly urging that no unnecessary delay could be allowed in reaching complete compliance with our mandate that racially segregated public schools be made nothing but a matter of past history. In this context of clashing objectives, it is not surprising that the judge's most recent 1968 order should have failed fully to satisfy either side. It is gratifying, however, that the differences are so minor as they appear to us to be.In his 1968 order, Judge Johnson provided for safeguards to assure that construction of new schools or additions to existing schools would not follow a pattern tending to perpetuate segregation. The order also provided for the adoption of nondiscriminatory bus routes and for other safeguards to insure that the board's transportation policy would not tend to perpetuate segregation. The order provided for detailed steps to eliminate the impression existing in the school district that the new Jefferson Davis High School and two new elementary schools were to be used primarily by white students. The order also included a requirement that the board file in the near future further specific reports detailing the steps taken to comply with each point of the order. Nearly all of these aspects of the order were accepted by the school board and not challenged in its appeal to the Court of Appeals. Of the provisions so far mentioned, only one aspect of the provision relating to Jefferson Davis High School was challenged in the Court of Appeals, and, after the Court of Appeals upheld Judge Johnson's order on this point, the school board accepted its decision and did not seek review on the question here.The dispute in this action thus centers only on that part of the 1968 order which deals with faculty and staff Page 395 U. S. 232 desegregation, a goal that we have recognized to be an important aspect of the basic task of achieving a public school system wholly free from racial discrimination. See, e.g., Bradley v. School Board, 382 U. S. 103 (1965); Rogers v. Paul, 382 U. S. 198 (1965). Judge Johnson noted that, in 1966, he had ordered the board to begin the process of faculty desegregation in the 1966-1967 school year, but that the board had not made adequate progress toward this goal. He also found:"The evidence does not reflect any real administrative problems involved in immediately desegregating the substitute teachers, the student teachers, the night school faculties, and in the evolvement of a really legally adequate program for the substantial desegregation of the faculties of all schools in the system commencing with the school year of 1968-69."289 F. Supp. at 650. He therefore concluded that a more specific order would be appropriate under all the circumstances to establish the minimum amount of progress that would be required for the future. To this end, his order provided that the board must move toward a goal under which, "in each school, the ratio of white to Negro faculty members is substantially the same as it is throughout the system." Id. at 654. In addition, the order set forth a specific schedule. The ratio of Negro to white teachers in the assignment of substitute, student, and night school teachers in each school was to be almost immediately made substantially the same as the ratio of Negro to white teachers in each of these groups for the system as a whole. With respect to full-time teachers, a more gradual schedule was set forth. At the time, the ratio of white to Negro full-time teachers in the system as a whole was three to two. For the 1968-1969 school year, each school with fewer than 12 teachers was required to Page 395 U. S. 233 have at least two full-time teachers whose race was different from the race of the majority of the faculty at that school, and in schools with 12 or more teachers, the race of at least one out of every six faculty and staff members was required to be different from the race of the majority of the faculty and staff members at that school. The goals to be required for future years were not specified, but were reserved for later decision. About a week later, Judge Johnson amended part of the original order by providing that, in the 1968-1969 term, schools with less than 12 teachers would be required to have only one full-time teacher of the minority race, rather than two, as he had originally required.It was the part of the District Court's order containing this ratio pattern that prompted the modification of the order by the Court of Appeals. Agreeing that the District Court had properly found from"extensive hearings . . . that desegregation of faculties in the Montgomery County school system was lagging, and that appellants [the school board] had failed to comply with earlier orders of the court requiring full faculty desegregation,"and noting that the testimony of school officials themselves indicated the need for more specific guidelines, [Footnote 5] Page 395 U. S. 234 the Court of Appeals nevertheless struck down parts of the order which it viewed as requiring "fixed mathematical" ratios. It held that the part of the order-setting a specific goal for the 1968-1969 school year should be modified to require only "substantially or approximately" the 5-1 ratio required by Judge Johnson's order. With respect to the ultimate objective for the future, it held that the numerical ratio should be eliminated, and that compliance should not be tested solely by the achievement of specified ratios. In so holding, the Court of Appeals made many arguments against rigid or inflexible orders in this kind of case. These arguments might possibly be more troublesome if we read the District Court's order as being absolutely rigid and inflexible, as did the Court of Appeals. But after a careful consideration of the whole record, we cannot believe that Judge Johnson had any such intention. During the four or five years that he held hearings and considered the problem before him, new orders, as previously shown, were issued annually, and sometimes more often. On at least one occasion, Judge Johnson, on his own motion, amended his outstanding order because a less stringent order for another Page 395 U. S. 235 district had been approved by the Court of Appeals. This was done in order not to inflict any possible injustice on the Montgomery County school system. Indeed, the record is filled with statements by Judge Johnson showing his full understanding of the fact that, as this Court also has recognized, in this field, the way must always be left open for experimentation. [Footnote 6]Judge Johnson's order now before us was adopted in the spirit of this Court's opinion in Green v. County School Board, supra, at 391 U. S. 439, in that his plan "promises realistically to work, and promises realistically to work now." The modifications ordered by the panel of the Court of Appeals, while, of course, not intended to do so, would, we think, take from the order some of its capacity to expedite, by means of specific commands, the day when a completely unified, unitary, nondiscriminatory school system becomes a reality, instead of a hope. We believe it best to leave Judge Johnson's order as written, rather than as modified by the 2-1 panel, particularly in view of the fact that the Court of Appeals as a whole was evenly divided on this subject. We also believe that, under all the circumstances of this case, we follow the original plan outlined in Brown II, as brought up to date by this Court's opinions in Green v. County School Board, supra, and Griffin v. School Board, 377 U. S. 218, 377 U. S. 233-234 (1964), by accepting the more specific and Page 395 U. S. 236 expeditious order of Judge Johnson, whose patience and wisdom are written for all to see and read on the pages of the five-year record before us.It is good to be able to decide a case with the feelings we have about this one. The differences between the parties are exceedingly narrow. Respondents, members of the Montgomery County school board, state clearly in their brief,"These respondents recognize their affirmative responsibility to provide a desegregated, unitary and nonracial school system. These respondents recognize their responsibility to assign teachers without regard to race so that schools throughout the system are not racially identifiable by their faculties. . . ."Brief for Respondents 11-12. Petitioners, on the other hand, do not argue for precisely equal ratios in every single school under all circumstances. As the United States, petitioner in No. 798, recognizes in its brief, the District Court's order"is designed as a remedy for past racial assignment. . . . We do not, in other words, argue here that racially balanced faculties are constitutionally or legally required."Brief for the United States 13. In short, the Montgomery County school board, and its counsel, assert their purpose to bring about a racially integrated school system as early as practicable in good faith obedience to this Court's decisions. Both the District Judge and the Court of Appeals have accorded to the parties and their counsel courteous and patient consideration; there is no sign of lack of interest in the cause of either justice or education in the views maintained by any of the parties or in the orders entered by either of the courts below. Despite the fact that the individual petitioners in this litigation have with some reason argued that Judge Johnson should have gone farther to protect their rights than he did, we approve his order as he wrote it. This, we believe, is the best course we can take in the interest of the petitioners and the public school system of Alabama. Page 395 U. S. 237 We hope and believe that this order and the approval that we now give it will carry Alabama a long distance on its way toward obedience to the law of the land as we have declared it in the two Brown cases and those that have followed them.The judgment of the Court of Appeals is reversed, and the cases are remanded with directions to affirm the judgment of the District Court.It is so ordered

U.S. Supreme CourtUnited States v. Montgomery County Bd. of Educ., 395 U.S. 225 (1969)United States v. Montgomery County Board of EducationNo. 798Argued April 28, 1969Decided June 2, 1969*395 U.S. 225SyllabusThis action was commenced in May, 1964, to obtain integration in the Montgomery County, Alabama, public schools. The District Judge issued his initial order in 1964 requiring integration of certain grades and followed this by yearly proceedings, with reports by the school board and hearings, opinions, and court orders. The 1968 court order dealt, among other things, with faculty and staff desegregation and provided that the school board must move toward a goal whereby, "in each school, the ratio of white to Negro faculty members is substantially the same as it is throughout the system." A panel of the Court of Appeals modified the order. A petition for rehearing en banc was denied by an equally divided Court of Appeals.Held: The District Judge's order is approved as written by him. Pp. 395 U. S. 231-237.400 F.2d 1, reversed and remanded.

1968_138

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.In November, 1966, petitioner Adam Clayton Powell, Jr., was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. However, pursuant to a House resolution, he was not permitted to take his seat. Powell (and some of the voters of his district) then filed suit in Federal District Court, claiming that the House could exclude him only if it found he failed to meet the standing requirements of age, citizenship, and residence contained in Art. I, § 2, of the Constitution -- requirements the House specifically found Powell met -- and thus had excluded him unconstitutionally. The District Court dismissed petitioners' complaint "for want of jurisdiction of the subject matter." A panel of the Court of Appeals affirmed the dismissal, although on somewhat different grounds, each judge filing a separate opinion. We have determined that it was error to dismiss the complaint, and that petitioner Powell is entitled to a declaratory judgment that he was unlawfully excluded from the 90th Congress.IFACTSDuring the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner Page 395 U. S. 490 Adam Clayton Powell, Jr., was chairman. The Special Subcommittee issued a report concluding that Powell and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments had been made to Powell's wife at his direction. See H.R.Rep. No. 2349, 89th Cong., 2d Sess., 6-7 (1966). No formal action was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove Powell as chairman of the Committee on Education and Labor. See H.R.Rep. No. 27, 90th Cong., 1st Sess., 1-2 (1967).When the 90th Congress met to organize in January, 1967, Powell was asked to step aside while the oath was administered to the other members-elect. Following the administration of the oath to the remaining members, the House discussed the procedure to be followed in determining whether Powell was eligible to take his seat. After some debate, by a vote of 363 to 65, the House adopted House Resolution No. 1, which provided that the Speaker appoint a Select Committee to determine Powell's eligibility. 113 Cong.Rec. 26-27. Although the resolution prohibited Powell from taking his seat until the House acted on the Select Committee's report, it did provide that he should receive all the pay and allowances due a member during the period.The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell's qualifications as to age, citizenship, and residency; his involvement in a civil suit (in which he had been held in contempt), and "[m]atters of . . . alleged official misconduct since January 3, 1961." See Hearings on Page 395 U. S. 491 H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No. 1, 90th Cong., 1st Sess., 5 (1967) (hereinafter Hearings). Powell appeared at the Committee hearing held on February 8, 1967. After the Committee denied in part Powell's request that certain adversary-type procedures be followed, [Footnote 1] Powell testified. He would, however, give information relating only to his age, citizenship, and residency; upon the advice of counsel, he refused to answer other questions.On February 10, 1967, the Select Committee issued another invitation to Powell. In the letter, the Select Committee informed Powell that its responsibility under the House Resolution extended to determining not only whether he met the standing qualifications of Art. I, § 2, but also to"inquir[ing] into the question of whether you should be punished or expelled pursuant to the powers granted . . . the House under Article I, Section 5, . . . of the Constitution. In other words, the Select Committee is of the opinion that, at the conclusion of the present inquiry, it has authority to report back to the House recommendations with respect to . . . seating, expulsion or other punishment."See Hearings 110. Powell did Page 395 U. S. 492 not appear at the next hearing, held February 14, 1967. However, his attorneys were present, and they informed the Committee that Powell would not testify about matters other than his eligibility under the standing qualifications of Art. I, § 2. Powell's attorneys reasserted Powell's contention that the standing qualifications were the exclusive requirements for membership, and they further urged that punishment or expulsion was not possible until a member had been seated. See Hearings 111-113.The Committee held one further hearing at which neither Powell nor his attorneys were present. Then, on February 23, 1967, the Committee issued its report, finding that Powell met the standing qualifications of Art. I, § 2. H.R.Rep. No. 27, 90th Cong., 1st Sess., 31 (1967). However, the Committee further reported that Powell had asserted an unwarranted privilege and immunity from the processes of the courts of New York; that he had wrongfully diverted House funds for the use of others and himself, and that he had made false reports on expenditures of foreign currency to the Committee on House Administration. Id. at 31-32. The Committee recommended that Powell be sworn and seated as a member of the 90th Congress, but that he be censured by the House, fined $40,000, and be deprived of his seniority. Id. at 33.The report was presented to the House on March 1, 1967, and the House debated the Select Committee's proposed resolution. At the conclusion of the debate, by a vote of 222 to 202 the House rejected a motion to bring the resolution to a vote. An amendment to the resolution was then offered; it called for the exclusion of Powell and a declaration that his seat was vacant. The Speaker ruled that a majority vote of the House would be sufficient to pass the resolution if it were so Page 395 U. S. 493 amended. 113 Cong.Rec. 5020. After further debate, the amendment was adopted by a vote of 248 to 176. Then the House adopted by a vote of 307 to 116 House Resolution No. 278 in its amended form, thereby excluding Powell and directing that the Speaker notify the Governor of New York that the seat was vacant.Powell and 13 voters of the 18th Congressional District of New York subsequently instituted this suit in the United States District Court for the District of Columbia. Five members of the House of Representatives were named as defendants individually and "as representatives of a class of citizens who are presently serving . . . as members of the House of Representatives." John W. McCormack was named in his official capacity as Speaker, and the Clerk of the House of Representatives, the Sergeant at Arms and the Doorkeeper were named individually and in their official capacities. The complaint alleged that House Resolution No. 278 violated the Constitution, specifically Art. I, § 2, cl. 1, because the resolution was inconsistent with the mandate that the members of the House shall be elected by the people of each State, and Art. I, § 2, cl. 2, which, petitioners alleged, sets forth the exclusive qualifications for membership. [Footnote 2] The complaint further alleged that the Clerk of the House threatened to refuse to perform the service for Powell to which a duly elected Congressman is entitled, that the Sergeant at Arms refused to pay Powell his salary, and that the Doorkeeper threatened to deny Powell admission to the House chamber. Page 395 U. S. 494Petitioners asked that a three-judge court be convened. [Footnote 3] Further, they requested that the District Court grant a permanent injunction restraining respondents from executing the House Resolution, and enjoining the Speaker from refusing to administer the oath, the Clerk from refusing to perform the duties due a Representative, the Sergeant at Arms from refusing to pay Powell his salary, and the Doorkeeper from refusing to admit Powell to the Chamber. [Footnote 4] The complaint also requested a declaratory judgment that Powell's exclusion was unconstitutional.The District Court granted respondents' motion to dismiss the complaint "for want of jurisdiction of the subject matter." Powell v. McCormack, 266 F. Supp. 354 (D.C. D.C.1967). [Footnote 5] The Court of Appeals for the District of Columbia Circuit affirmed on somewhat different grounds, with each judge of the panel filing a separate opinion. Powell v. McCormack, 129 U.S.App.D.C. 354, 395 F.2d 577 (1968). We granted certiorari. 393 U.S. 949 (1968). While the case was pending on our docket, the 90th Congress officially terminated, and the 91st Congress was seated. In November, 1968, Powell was again elected as the representative of the 18th Congressional District of New York, and he was seated by the 91st Congress. The resolution seating Powell also Page 395 U. S. 495 fined him $25,000. See H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969). Respondents then filed a suggestion of mootness. We postponed further consideration of this suggestion to a hearing on the merits. 393 U.S. 1060 (1969).Respondents press upon us a variety of arguments to support the court below; they will be considered in the following order. (1) Events occurring subsequent to the grant of certiorari have rendered this litigation moot. (2) The Speech or Debate Clause of the Constitution, Art. I, § 6, insulates respondents' action from judicial review. (3) The decision to exclude petitioner Powell is supported by the power granted to the House of Representatives to expel a member. (4) This Court lacks subject matter jurisdiction over petitioners' action. (5) Even if subject matter jurisdiction is present, this litigation is not justiciable either under the general criteria established by this Court or because a political question is involved.IIMOOTNESSAfter certiorari was granted, respondents filed a memorandum suggesting that two events which occurred subsequent to our grant of certiorari require that the case be dismissed as moot. On January 3, 1969, the House of Representatives of the 90th Congress officially terminated, and petitioner Powell was seated as a member of the 91st Congress. 115 Cong.Rec. H22 (daily ed., January 3, 1969). Respondents insist that the gravamen of petitioners' complaint was the failure of the 90th Congress to seat petitioner Powell, and that, since the House of Representatives is not a continuing body [Footnote 6] Page 395 U. S. 496 and Powell has now been seated, his claims are moot. Petitioners counter that three issues remain unresolved, and thus this litigation present a "case or controversy" within the meaning of Art. III: [Footnote 7] (1) whether Powell was unconstitutionally deprived of his seniority by his exclusion from the 90th Congress; (2) whether the resolution of the 91st Congress imposing as "punishment" a $25,000 fine is a continuation of respondents' allegedly unconstitutional exclusion, see H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969), and (3) whether Powell is entitled to salary withheld after his exclusion from the 90th Congress. We conclude that Powell's claim for back salary remains viable even though he has been seated in the 91st Congress, and thus find it unnecessary to determine whether the other issues have become moot. [Footnote 8]Simply stated, a case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declaratory Page 395 U. S. 497 Judgments 35-37 (2d ed.1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 86-94 (1947); 6A J. Moore, Federal Practice 1157.13 (2d ed.1966). Despite Powell's obvious and continuing interest in his withheld salary, respondents insist that Alejandrino v. Quezon, 271 U. S. 528 (1926), leaves us no choice but to dismiss this litigation as moot. Alejandrino, a duly appointed Senator of the Philippine Islands, was suspended for one year by a resolution of the Philippine Senate and deprived of all "prerogatives, privileges and emoluments" for the period of his suspension. The Supreme Court of the Philippines refused to enjoin the suspension. By the time the case reached this Court, the suspension had expired and the Court dismissed as moot Alejandrino's request that the suspension be enjoined. Then, sua sponte, [Footnote 9] the Court considered whether the possibility that Alejandrino was entitled to back salary required it "to retain the case for the purpose of determining whether he [Alejandrino] may not have a mandamus for this purpose." Id. at 271 U. S. 533. Characterizing the issue of Alejandrino's salary as a "mere incident" to his claim that the suspension was improper, the Court noted that he had not briefed the salary issue, and that his request for mandamus did not set out with sufficient clarity the official or set of officials against whom the mandamus should issue. Id. at 271 U. S. 533-534. The Court therefore refused to treat the salary claim and dismissed the entire action as moot. Page 395 U. S. 498Respondents believe that Powell's salary claim is also a "mere incident" to his insistence that he was unconstitutionally excluded so that we should likewise dismiss this entire action as moot. This argument fails to grasp that the reason for the dismissal in Alejandrino was not that Alejandrino's deprivation of salary was insufficiently substantial to prevent the case from becoming moot, but rather that his failure to plead sufficient facts to establish his mandamus claim made it impossible for any court to resolve the mandamus request. [Footnote 10] By contrast, petitioners' complaint names the official responsible for the payment of congressional salaries and asks for both mandamus and an injunction against that official. [Footnote 11]Furthermore, even if respondents are correct that petitioners' averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitutional House resolution. That claim is still unresolved, and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available Page 395 U. S. 499 when Alejandrino was decided. [Footnote 12] A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. See United Public Workers v. Mitchell, supra, at 330 U. S. 93; cf. United States v. California, 332 U. S. 19, 332 U. S. 25-26 (1947). A declaratory judgment can then be used as a predicate to further relief, including an injunction. 28 U.S.C. § 2202; see Vermont Structural Slate Co. v. Tatko Brothers Slate Co., 253 F.2d 29 (C.A.2d Cir.1958); United States Lines Co. v. Shaughnessy, 195 F.2d 385 (C.A.2d Cir.1952). Alejandrino stands only for the proposition that, where one claim has become moot and the pleadings are insufficient to determine whether the plaintiff is entitled to another remedy, the action should be dismissed as moot. [Footnote 13] There is no suggestion that petitioners' averments as to declaratory relief are insufficient, and Powell's allegedly unconstitutional deprivation of salary remains unresolved.Respondents further argue that Powell's "wholly incidental and subordinate" demand for salary is insufficient to prevent this litigation from becoming moot. They suggest that the "primary and principal relief" sought was the seating of petitioner Powell in the 90th Congress, rendering his presumably secondary claims not worthy of judicial consideration. Bond v. Floyd, 385 U. S. 116 (1966), rejects respondents' theory that the mootness of a "primary" claim requires a conclusion that all "secondary" claims are moot. At the Bond oral argument, it was suggested that the expiration of the session of the Georgia Legislature which excluded Bond had rendered Page 395 U. S. 500 the case moot. We replied:"The State has not pressed this argument, and it could not do so, because the State has stipulated that, if Bond succeeds on this appeal, he will receive back salary for the term from which he was excluded."385 U.S. at 385 U. S. 128, n. 4. Bond is not controlling, argue respondents, because the legislative term from which Bond was excluded did not end until December 31, 1966, [Footnote 14] and our decision was rendered December 5; further, when Bond was decided, Bond had not as yet been seated, while, in this case, Powell has been. [Footnote 15] Respondents do not tell us, however, why these factual distinctions create a legally significant difference between Bond and this case. We relied in Bond on the outstanding salary claim, not the facts respondents stress, to hold that the case was not moot.Finally, respondents seem to argue that Powell's proper action to recover salary is a suit in the Court of Claims, so that, having brought the wrong action, a dismissal for mootness is appropriate. The short answer to this argument is that it confuses mootness with whether Powell has established a right to recover against the Sergeant at Arms, a question which it is inappropriate to treat at this stage of the litigation. [Footnote 16] Page 395 U. S. 501IIISPEECH OR DEBATE CLAUSERespondents assert that the Speech or Debate Clause of the Constitution, Art. I, § 6, [Footnote 17] is an absolute bar to petitioners' action. This Court has on four prior occasions -- Dombrowski v. Eastland, 387 U. S. 82 (1967); United States v. Johnson, 383 U. S. 169 (1966); Tenney v. Brandhove, 341 U. S. 367 (1951), and Kilbourn v. Thompson, 103 U. S. 168 (1881) -- been called upon to determine if allegedly unconstitutional action taken by legislators or legislative employees is insulated from judicial review by the Speech or Debate Clause. Both parties insist that their respective positions find support in these cases, and tender for decision three distinct issues: (1) whether respondents, in participating in the exclusion of petitioner Powell, were "acting in the sphere of legitimate legislative activity," Tenney v. Brandhove, supra, at 341 U. S. 376; (2) assuming that respondents were so acting, whether the fact that petitioners seek neither damages from any of the respondents nor a criminal prosecution lifts the bar of the clause; [Footnote 18] and (3) even if this Page 395 U. S. 502 action may not be maintained against a Congressman, whether those respondents who are merely employees of the House may plead the bar of the clause. We find it necessary to treat only the last of these issues.The Speech or Debate Clause, adopted by the Constitutional Convention without debate or opposition, [Footnote 19] finds its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689. [Footnote 20] Drawing upon this history, we concluded in United States v. Johnson, supra, at 383 U. S. 181, that the purpose of this clause was "to prevent intimidation [of legislators] by the executive and accountability before a possibly hostile Judiciary." Although the clause sprang from a fear of seditious libel actions instituted by the Crown to punish unfavorable speeches made in Parliament, [Footnote 21] we have held that it would be a "narrow view" to confine the protection of the Speech or Debate Clause to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are "things generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, supra, at 103 U. S. 204. Furthermore, the clause not only provides a Page 395 U. S. 503 defense on the merits, but also protects a legislator from the burden of defending himself. Dombrowski v. Eastland, supra, at 387 U. S. 85; see Tenney v. Brandhove, supra, at 341 U. S. 377.Our cases make it clear that the legislative immunity created by the Speech or Debate Clause performs an important function in representative government. It insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation. Thus, in Tenney v. Brandhove, supra, at 341 U. S. 373, the Court quoted the writings of James Wilson as illuminating the reason for legislative immunity:"In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of everyone, however powerful, to whom the exercise of that liberty may occasion offence. [Footnote 22]"Legislative immunity does not, of course, bar all judicial review of legislative acts. That issue was settled by implication as early as 1803, See Marbury v. Madison, 1 Cranch 137, and expressly in Kilbourn v. Thompson, the first of this Court's cases interpreting the reach of the Speech or Debate Clause. Challenged in Kilbourn was the constitutionality of a House Resolution ordering the arrest and imprisonment of a recalcitrant witness who had refused to respond to a subpoena issued by a House investigating committee. While holding that the Speech or Debate Clause barred Kilbourn's action for false imprisonment brought against several members of the House, the Court nevertheless reached the merits of Kilbourn's attack, and decided that, since the House had no power to punish for contempt, Kilbourn's imprisonment Page 395 U. S. 504 pursuant to the resolution was unconstitutional. It therefore allowed Kilbourn to bring his false imprisonment action against Thompson, the House's Sergeant at Arms, who had executed the warrant for Kilbourn's arrest.The Court first articulated in Kilbourn and followed in Dombrowski v. Eastland [Footnote 23] the doctrine that, although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts. Despite the fact that petitioners brought this suit against several House employees -- the Sergeant at Arms, the Doorkeeper and the Clerk -- as well as several Congressmen, respondents argue that Kilbourn and Dombrowski are distinguishable. Conceding that, in Kilbourn, the presence of the Sergeant at Arms, and, in Dombrowski, the presence of a congressional subcommittee counsel as defendants in the litigation allowed judicial review of the challenged congressional action, respondents urge that both cases concerned an affirmative act performed by the employee outside the House having a direct effect upon a private citizen. Here, they continue, the relief sought relates to actions taken by House agents solely within the House. Alternatively, respondents insist that Kilbourn and Dombrowski prayed for damages, while petitioner Powell asks that the Sergeant at Arms disburse funds, an assertedly greater interference with the legislative process. We reject the proffered distinctions.That House employees are acting pursuant to express orders of the House does not bar judicial review of the constitutionality of the underlying legislative decision. Page 395 U. S. 505 Kilbourn decisively settles this question, since the Sergeant at Arms was held liable for false imprisonment even though he did nothing more than execute the House Resolution that Kilbourn be arrested and imprisoned. [Footnote 24] Respondents' suggestions thus ask us to distinguish between affirmative acts of House employees and situations in which the House orders its employees not to act or between actions for damages and claims for salary. We can find no basis in either the history of the Speech or Debate Clause or our cases for either distinction. The purpose of the protection afforded legislators is not to forestall judicial review of legislative action, but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions. A legislator is no more or no less hindered or distracted by litigation against a legislative employee calling into question the employee's affirmative action than he would be by a lawsuit questioning the employee's failure to act. Nor is the distraction or hindrance increased because the claim is for salary, rather than damages, or because the litigation questions action taken by the employee within, rather than without, the House. Freedom of legislative activity and the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves. [Footnote 25] In Kilbourn and Dombrowski, Page 395 U. S. 506 we thus dismissed the action against members of Congress, but did not regard the Speech or Debate Clause as a bar to reviewing the merits of the challenged Congressional action, since congressional employees were also sued. Similarly, though this action may be dismissed against the Congressmen, petitioners are entitled to maintain their action against House employees and to judicial review of the propriety of the decision to exclude petitioner Powell. [Footnote 26] As was said in Kilbourn, in language which time has not dimmed:"Especially is it competent and proper for this court to consider whether its [the legislature's] proceedings are in conformity with the Constitution and laws because, living under a written constitution, no branch or department of the government is supreme, and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution, and, if they have not, to treat their acts as null and void."103 U.S. at 103 U. S. 199.IVEXCLUSION OR EXPULSIONThe resolution excluding petitioner Powell was adopted by a vote in excess of two-thirds of the 434 Members of Page 395 U. S. 507 Congress, 307 to 116. 113 Cong.Rec. 5037-5038. Article I, § 5, grants the House authority to expel a member "with the Concurrence of two thirds." [Footnote 27] Respondents assert that the House may expel a member for any reason whatsoever, and that, since a two-thirds vote was obtained, the procedure by which Powell was denied his seat in the 90th Congress should be regarded as an expulsion, not an exclusion. Cautioning us not to exalt form over substance, respondents quote from the concurring opinion of Judge McGowan in the court below:"Appellant Powell's cause of action for a judicially compelled seating thus boils down, in my view, to the narrow issue of whether a member found by his colleagues . . . to have engaged in official misconduct must, because of the accidents of timing, be formally admitted before he can be either investigated or expelled. The sponsor of the motion to exclude stated on the floor that he was proceeding on the theory that the power to expel included the power to exclude, provided a 2/3 vote was forthcoming. It was. Therefore, success for Mr. Powell on the merits would mean that the District Court must admonish the House that it is form, not substance, that should govern in great affairs, and accordingly command the House members to act out a charade."129 U.S.App.D.C. at 383-384, 395 F.2d at 606-607. Page 395 U. S. 508Although respondents repeatedly urge this Court not to speculate as to the reasons for Powell's exclusion, their attempt to equate exclusion with expulsion would require a similar speculation that the House would have voted to expel Powell had it been faced with that question. Powell had not been seated at the time House Resolution No. 278 was debated and passed. After a motion to bring the Select Committee's proposed resolution to an immediate vote had been defeated, an amendment was offered which mandated Powell's exclusion. [Footnote 28] Mr. Celler, chairman of the Select Committee, then posed a parliamentary inquiry to determine whether a two-thirds vote was necessary to pass the resolution if so amended "in the sense that it might amount to an expulsion." 113 Cong.Rec. 5020. The Speaker replied that "action by a majority vote would be in accordance with the rules." Ibid. Had the amendment been regarded as an attempt to expel Powell, a two-thirds vote would have been constitutionally required. The Speaker ruled that the House was voting to exclude Powell, and we will not speculate what the result might have been if Powell had been seated and expulsion proceedings subsequently instituted.Nor is the distinction between exclusion and expulsion merely one of form. The misconduct for which Powell was charged occurred prior to the convening of the 90th Congress. On several occasions, the House has debated whether a member can be expelled for actions taken during a prior Congress, and the House's own manual of procedure applicable in the 90th Congress states that "both Houses have distrusted their power to punish in such cases." Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., 25 (1967); Page 395 U. S. 509 see G. Galloway, History of the House of Representatives 32 (1961). The House rules manual reflects positions taken by prior Congress. For example, the report of the Select Committee appointed to consider the expulsion of John W. Langley states unequivocally that the House will not expel a member for misconduct committed during an earlier Congress:"[I]t must be said that with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member, not even for conviction for an offense. On May 23, 1884, Speaker Carlisle decided that the House had no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected a Member, and added, 'That has been so frequently decided in the House that it is no longer a matter of dispute.'"H.R.Rep. No. 30, 69th Cong., 1st Sess., 1-2 (1925). [Footnote 29] Page 395 U. S. 510 Members of the House having expressed a belief that such strictures apply to its own power to expel, we will not assume that two-thirds of its members would have expelled Powell for his prior conduct had the Speaker announced that House Resolution No. 278 was for expulsion, rather than exclusion. [Footnote 30]Finally, the proceedings which culminated in Powell's exclusion cast considerable doubt upon respondents' assumption that the two-thirds vote necessary to expel would have been mustered. These proceedings have been succinctly described by Congressman Eckhardt:"The House voted 202 votes for the previous question [Footnote 31] leading toward the adoption of the [Select] Committee report. It voted 222 votes against the previous question, opening the floor for the Curtis Amendment, which ultimately excluded Powell. "Page 395 U. S. 511"Upon adoption of the Curtis Amendment, the vote again fell short of two-thirds, being 248 yeas to 176 nays. Only on the final vote, adopting the Resolution as amended, was more than a two-thirds vote obtained, the vote being 307 yeas to 116 nays. On this last vote, as a practical matter, members who would not have denied Powell a seat if they were given the choice to punish him had to cast an aye vote or else record themselves as opposed to the only punishment that was likely to come before the House. Had the matter come up through the processes of expulsion, it appears that the two-thirds vote would have failed, and then members would have been able to apply a lesser penalty. [Footnote 32]"We need express no opinion as to the accuracy of Congressman Eckhardt's prediction that expulsion proceedings would have produced a different result. However, the House's own views of the extent of its power to expel Page 395 U. S. 512 combined with the Congressman's analysis counsel that exclusion and expulsion are not fungible proceedings. The Speaker ruled that House Resolution No. 278 contemplated an exclusion proceeding. We must reject respondents' suggestion that we overrule the Speaker, and hold that, although the House manifested an intent to exclude Powell, its action should be tested by whatever standards may govern an expulsion.VSUBJECT MATTER JURISDICTIONAs we pointed out in Baker v. Carr, 369 U. S. 186, 369 U. S. 198 (1962), there is a significant difference between determining whether a federal court has "jurisdiction of the subject matter" and determining whether a cause over which a court has subject matter jurisdiction is "justiciable." The District Court determined that "to decide this case on the merits . . . would constitute a clear violation of the doctrine of separation of powers." and then dismissed the complaint "for want of jurisdiction of the subject matter." Powell v. McCormack, 266 F. Supp. 354, 359, 360 (D.C. D.C.1967). However, as the Court of Appeals correctly recognized, the doctrine of separation of powers is more properly considered in determining whether the case is "justiciable." We agree with the unanimous conclusion of the Court of Appeals that the District Court had jurisdiction over the subject matter of this case. [Footnote 33] However, for reasons set forth in 395 U. S. infra we disagree with the Court of Appeals' conclusion that this case is not justiciable.In Baker v. Carr, supra, we noted that a federal district court lacks jurisdiction over the subject matter (1) if the Page 395 U. S. 513 cause does not "arise under" the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a "case or controversy" within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute. And, as in Baker v. Carr, supra, our determination (see 395 U. S. B(1), infra) that this cause presents no nonjusticiable "political question" disposes of respondents' contentions [Footnote 34] that this cause is not a "case or controversy." [Footnote 35]Respondents first contend that this is not a case "arising under" the Constitution within the meaning of Art. III. They emphasize that Art. I, § 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that, under Art. I, § 3, the Senate has the "sole power" to try all impeachments. Respondents argue that these delegations (to "judge," to "punish," and to "try") to the Legislative Branch are explicit grants of "judicial power" to the Congress, and constitute specific exceptions Page 395 U. S. 514 to the general mandate of Art. III that the "judicial power" shall be vested in the federal courts. Thus, respondents maintain, the"power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed. [Footnote 36]"We reject this contention. Article III, § 1, provide that the "judicial Power . . . shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish." Further, § 2 mandates that the "judicial Power shall extend to all Cases . . . arising under this Constitution. . . ." It has long been held that a suit "arises under" the Constitution if a petitioner's claim "will be sustained if the Constitution . . . [is] given one construction and will be defeated if [it is] given another." [Footnote 37] Bell v. Hood, 327 U. S. 678, 327 U. S. 685 (1946). See King County v. Seattle School District No. 1, 263 U. S. 361, 263 U. S. 363-364 (1923). Cf. 22 U. S. Bank of the United States, 9 Wheat. 738 (1824). See generally C. Wright, Federal Courts 48-52 (1963). Thus, this case clearly is one "arising under" the Constitution as the Court has interpreted that phrase. Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners' failure to state a claim based on federal law.Respondents next contend that the Court of Appeals erred in ruling that petitioners' suit is authorized by a jurisdictional statute, i.e., 28 U.S.C. § 1331(a). Page 395 U. S. 515 Section 1331(a) provides that district courts shall have jurisdiction in "all civil actions wherein the matter in controversy . . . arises under the Constitution. . . ." Respondents urge that, even though a case may "arise under the Constitution" for purposes of Art. III, it does not necessarily "arise under the Constitution" for purposes of § 1331(a). Although they recognize there is little legislative history concerning the enactment of § 1331(a), respondents argue that the history of the period when the section was first enacted indicates that the drafters did not intend to include suits questioning the exclusion of Congressmen in this grant of "federal question" jurisdiction.Respondents claim that the passage of the Force Act [Footnote 38] in 1870 lends support to their interpretation of the intended scope of § 1331. The Force Act gives the district courts jurisdiction over"any civil action to recover possession of any office . . . wherein it appears that the sole question . . . arises out of denial of the right to vote . . . on account of race, color or previous condition of servitude."However, the Act specifically excludes suits concerning the office of Congressman. Respondents maintain that this exclusion demonstrates Congress' intention to prohibit federal courts from entertaining suits regarding the seating of Congressmen.We have noted that the grant of jurisdiction in § 1331(a), while made in the language used in Art. III, is not in all respects coextensive with the potential for federal jurisdiction found in Art. III. See Zwickler v. Koota, 389 U. S. 241, 389 U. S. 246, n. 8 (1967). Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts. See, e.g., Mishkin, The Federal "Question" in the District Courts, 53 Col.L.Rev. Page 395 U. S. 516 157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 6 645 (1942). And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute. Bell v. Hood, supra; King County v. Seattle School District No. 1, supra. See, e.g., Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 299 U. S. 112 (1936); The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 228 U. S. 25 (1913).As respondents recognize, there is nothing in the wording or legislative history of § 1331 or in the decisions of this Court which would indicate that there is any basis for the interpretation they would give that section. Nor do we think the passage of the Force Act indicates that § 1331 does not confer jurisdiction in this case. The Force Act is limited to election challenges where a denial of the right to vote in violation of the Fifteenth Amendment is alleged. See 28 U.S.C. § 1344. Further, the Act was passed five years before the original version of 1331 was enacted. While it might be inferred that Congress intended to give each House the exclusive power to decide congressional election challenges, [Footnote 39] there is absolutely no indication that the passage of this Act evidences an intention to impose other restrictions on the broad grant of jurisdiction in § 1331.VIJUSTICIABILITYHaving concluded that the Court of Appeals correctly ruled that the District Court had jurisdiction over the subject matter, we turn to the question whether the case is justiciable. Two determinations must be made in this regard. First, we must decide whether the claim Page 395 U. S. 517 presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a "political question" -- that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.A. General ConsiderationsIn deciding generally whether a claim is justiciable, a court must determine whether"the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded."Baker v. Carr, supra, at 369 U. S. 198. Respondents do not seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements, and that he was nevertheless excluded.Respondents do maintain, however, that this case is not justiciable because, they assert, it is impossible for a federal court to "mold effective relief for resolving this case." Respondents emphasize that petitioners asked for coercive relief against the officers of the House, and, they contend, federal courts cannot issue mandamus or injunctions compelling officers or employees of the House to perform specific official acts. Respondents rely primarily on the Speech or Debate Clause to support this contention.We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that a district court may "declare the rights . . . of any interested party . . . whether or not further relief is or could be sought." The Page 395 U. S. 518 availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, 394 U. S. 103 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 93 (1947); 6A J. Moore, Federal Practice � 57.08[3] (2d ed.1966); cf. United States v. California, 332 U. S. 19, 332 U. S. 25-26 (1947). We thus conclude that, in terms of the general criteria of justiciability, this case is justiciable.B. Political Question Doctrine1. Textually Demonstrable Constitutional Commitment.Respondents maintain that, even if this case is otherwise justiciable, it presents only a political question. It is well established that the federal courts will not adjudicate political questions. See, e.g., Coleman v. Miller, 307 U. S. 433 (1939); Oetjen v. Central Leather Co., 246 U. S. 297 (1918). In Baker v. Carr, supra, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations:"a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality Page 395 U. S. 519 of embarrassment from multifarious pronouncements by various departments on one question."369 U.S. at 369 U. S. 217.Respondents' first contention is that this case presents a political question because, under Art. I, 5, there has been a "textually demonstrable constitutional commitment" to the House of the "adjudicatory power" to determine Powell's qualifications. Thus, it is argued that the House, and the House alone, has power to determine who is qualified to be a member. [Footnote 40]In order to determine whether there has been a textual commitment to a coordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, § 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. Respondents Page 395 U. S. 520 maintain that the House has broad power under § 5, and, they argue, the House may determine which are the qualifications necessary for membership. On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution.If examination of § 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, [Footnote 41] further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are Page 395 U. S. 521 "inextricable from the case at bar." [Footnote 42] Baker v. Carr, supra, at 369 U. S. 217.In other words, whether there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department" of government and what is the scope of such commitment are questions we must resolve for the first time in this case. [Footnote 43] For, as we pointed out in Baker v. Carr, supra,"[d]eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution."Id. at 369 U. S. 211.In order to determine the scope of any "textual commitment" under Art. I, § 5, we necessarily must determine the meaning of the phrase to "be the Judge of the Qualifications of its own Members." Petitioners argue that the records of the debates during the Constitutional Convention; available commentary from the post-Convention, pre-ratification period, and early congressional applications of Art. I, § 5, support their construction of the section. Respondents insist, however, that a careful examination of the pre-Convention practices of the English Parliament and American colonial assemblies demonstrates that, by 1787, a legislature's power to judge the qualifications of its members was generally understood Page 395 U. S. 522 to encompass exclusion or expulsion on the ground that an individual's character or past conduct rendered him unfit to serve. When the Constitution and the debates over its adoption are thus viewed in historical perspective, argue respondents, it becomes clear that the "qualifications" expressly set forth in the Constitution were not meant to limit the long-recognized legislative power to exclude or expel at will, but merely to establish "standing incapacities," which could be altered only by a constitutional amendment. Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct, and that the Constitution leaves the House [Footnote 44] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.a. The Pre-Convention Precedents.Since our rejection of respondents' interpretation of § 5 results in significant measure from a disagreement with their historical analysis, we must consider the relevant historical antecedents in considerable detail. As do respondents, we begin with the English and colonial precedents.The earliest English exclusion precedent appears to be a declaration by the House of Commons in 1553"that Alex. Nowell, being Prebendary [i.e., a clergyman] in Westminster, and thereby having voice in the Convocation House, cannot be a member of this House. . . ."J. Tanner, Tudor Constitutional Documents: A.D. 1485-1603, p. 596 (2d ed.1930). This decision, however, was Page 395 U. S. 523 consistent with a long-established tradition that clergy who participated in their own representative assemblies or convocations were ineligible for membership in the House of Commons. [Footnote 45] See 1 E. Porritt, The Unreformed House of Commons 125 (1963); T. Taswell-Langmead's English Constitutional History 14143 (11th ed. T. Plucknett 1960). The traditional ineligibility of clergymen was recognized as a standing incapacity. [Footnote 46] See 1 W. Blackstone's Commentaries *175. Nowell's exclusion, therefore, is irrelevant to the present case, for petitioners concedes -- and we agree -- that, if Powell had not met one of the standing qualifications set forth in the Constitution, he could have been excluded under Art. I, § 5. The earliest colonial exclusions also fail to support respondents' theory. [Footnote 47] Page 395 U. S. 524Respondents' remaining 16th and 17th century English precedents all are cases of expulsion, although some were for misdeeds not encompassed within recognized standing incapacities existing either at the time of the expulsions or at the time the Constitution was drafted in 1787. [Footnote 48] Although these early expulsion orders occasionally contained statements suggesting that the individual expelled was thereafter ineligible for reelection, at least for the duration of the Parliament from which he was expelled, [Footnote 49] Page 395 U. S. 525 there is no indication that any were reelected and thereafter excluded. Respondents' colonial precedents during this period follow a similar pattern. [Footnote 50]Apparently the reelection of an expelled member first occurred in 1712. The House of Commons had expelled Robert Walpole for receiving kickbacks for contracts relating to "foraging the Troops," 17 H.C.Jour. 28, and committed him to the Tower. Nevertheless, two months later, he was reelected. The House thereupon resolved"[t]hat Robert Walpole, Esquire, having been, this Session of Parliament, committed a Prisoner to the Tower of London, and expelled [from] this House, . . . is incapable of being elected a Member to serve in this present Parliament. . . ."Id. at 128. (Second emphasis added.) A new election was ordered, and Walpole was not reelected. At least two similar exclusions after an initial expulsion were effected in the American colonies during the first half of the 18th century. [Footnote 51] Page 395 U. S. 526Respondents urge that the Walpole case provides strong support for their conclusion that the pre-Convention English and colonial practice was that members-elect could be excluded for their prior misdeeds at the sole discretion of the legislative body to which they had been elected. However, this conclusion overlooks an important limiting characteristic of the Walpole case and of both the colonial exclusion cases on which respondents rely: the excluded member had been previously expelled. Moreover, Walpole was excluded only for the remainder of the Parliament from which he had been expelled. "The theory seems to have been that expulsion lasted as long as the parliament. . . ." Taswell-Langmead, supra, at 584, n. 99. Accord, 1 W. Blackstone's Commentaries *176. Thus, Walpole's exclusion justifies only the proposition that an expulsion lasted for the remainder of the particular Parliament, and the expelled member was therefore subject to subsequent exclusion if reelected prior to the next general election. The two colonial cases arguably support a somewhat broader principle, i.e., that the assembly could permanently expel. Apparently the colonies did not consistently adhere to the theory that an expulsion lasted only until the election of a new assembly. M. Clarke, Parliamentary Privilege in the American Colonies 196-202 (1943). [Footnote 52] Clearly, however, none of these cases supports respondents' contention that, by the 18th century the English Parliament Page 395 U. S. 527 and colonial assemblies had assumed absolute discretion to exclude any member-elect they deemed unfit to serve. Rather, they seem to demonstrate that a member could be excluded only if he had first been expelled.Even if these cases could be construed to support respondents' contention, their precedential value was nullified prior to the Constitutional Convention. By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th century -- the John Wilkes case. While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown's ministers as "the tools of despotism and corruption.'" R. Postgate, That Devil Wilkes 53 (1929). Wilkes and others who were involved with the publication in which the attack appeared were arrested. [Footnote 53] Prior to Wilkes' trial, the House of Commons expelled him for publishing "a false, scandalous, and seditious libel." 15 Parl.Hist.Eng. 1393 (1764). Wilkes then fled to France, and was subsequently sentenced to exile. 9 L. Gipson, The British Empire Before the American Revolution 37 (1956).Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King's Bench. Wilkes was convicted of seditious libel and sentenced to 22 months' imprisonment. The new Parliament Page 395 U. S. 528 declared him ineligible for membership and ordered that he be "expelled this House." 16 Parl. Hist. Eng. 545 (1769). Although Wilkes was reelected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him. See 11 Gipson, supra, at 207-215. [Footnote 54]Wilkes was released from prison in 1770, and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of reelection expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were "subversive of the rights of the whole body of electors of this kingdom." 22 Parl.Hist.Eng. 1411 (1782).With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that "the law of the land had regulated the qualifications of members to serve in parliament" and those qualifications were "not occasional, but fixed." 16 Parl.Hist.Eng. 589, 590 (1769). Certainly English practice did not support, nor had it ever supported, respondents' assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents Page 395 U. S. 529 for excluding a member-elect who had been previously expelled, [Footnote 55] it appears that the House of Commons also repudiated any "control over the eligibility of candidates, except in the administration of the laws which define their [standing] qualifications." T. May's Parliamentary Practice 66 (13th ed. T. Webster 1924). See Taswell-Langmead, supra, at 585. [Footnote 56]The resolution of the Wilkes case similarly undermined the precedential value of the earlier colonial exclusions, for the principles upon which they had been based were repudiated by the very body the colonial assemblies sought to imitate and whose precedents they generally followed. See Clarke, supra, at 54, 59-60, 196. Thus, in 1784, the Council of Censors of the Pennsylvania Assembly [Footnote 57] denounced the prior expulsion of an unnamed assemblyman, ruling that his expulsion had not been effected in conformity with the recently enacted Pennsylvania Constitution. [Footnote 58] In the course of its report, the Page 395 U. S. 530 Council denounced by name the Parliamentary exclusions of both Walpole and Wilkes, stating that they "reflected dishonor on none but the authors of these violences." Pennsylvania Convention Proceedings: 1776 and 1790, p. 89 (1825).Wilkes' struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes [Footnote 59] and his pursuit of the right to be Page 395 U. S. 531 seated in Parliament became a cause celebre for the colonists."[T]he cry of 'Wilkes and Liberty' echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wilkes' public career in the colonial press. . . . The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty. . . . They named towns, counties, and even children in his honour."11 Gipson, supra, at 222. [Footnote 60] It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes' final victory. Page 395 U. S. 532b. Convention DebatesRelying heavily on Charles Warren's analysis [Footnote 61] of the Convention debates, petitioners argue that the proceedings manifest the Framers' unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners' ultimate conclusion is correct.The Convention opened in late May, 1787. By the end of July, the delegates adopted, with a minimum of debate, age requirements for membership in both the Senate and the House. The Convention then appointed a Committee of Detail to draft a constitution incorporating these and other resolutions adopted during the preceding months. Two days after the Committee was appointed, George Mason, of Virginia, moved that the Committee consider a clause "requiring certain qualifications of landed property & citizenship'" and disqualifying from membership in Congress persons who had unsettled accounts or who were indebted to the United States. 2 Farrand 121. A vigorous debate ensued. Charles Pinckney and General Charles C. Pinckney, both of South Carolina, moved to extend these incapacities to both the judicial and executive branches of the new government. But John Dickinson, of Delaware, opposed the inclusion of any statement of qualifications in the Constitution. He argued that it would be"impossible Page 395 U. S. 533 to make a compleat one, and a partial one would, by implication, tie up the hands of the Legislature from supplying the omissions."Id. at 123. [Footnote 62] Dickinson's argument was rejected, and, after eliminating the disqualification of debtors and the limitation to "landed" property, the Convention adopted Mason's proposal to instruct the Committee of Detail to draft a property qualification. Id. at 116-117.The Committee reported in early August, proposing no change in the age requirement; however, it did recommend adding citizenship and residency requirements for membership. After first debating what the precise requirements should be, on August 8, 1787, the delegates unanimously adopted the three qualifications embodied in Art. I, § 2. Id. at 213. [Footnote 63]On August 10, the Convention considered the Committee of Detail's proposal that the"Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient."Id. at 179. The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest"an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt., and ought to be fixed by the Constitution. If the Legislature Page 395 U. S. 534 could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected as the number authorised to elect. . . . It was a power also which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised by the stronger in order to keep out partizans of [a weaker] faction."Id. at 249-250. [Footnote 64] Significantly, Madison's argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison's arguments and those made in Wilkes' behalf is striking. [Footnote 65] Page 395 U. S. 535In view of what followed Madison's speech, it appears that, on this critical day, the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the "indisputable right [of the people] to return whom they thought proper" [Footnote 66] to the legislature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional, and "dangerous because it would be much more liable to abuse." Id. at 250. Gouverneur Morris then moved to strike "with regard to property" from the Committee's proposal. His intention was "to leave the Legislature entirely at large." Ibid. Hugh Williamson, of North Carolina, expressed concern that, if a majority of the legislature should happen to be "composed of any particular description of men, of lawyers for example, . . . the future elections might be secured to their own body." Ibid. [Footnote 67] Madison then referred to the British Parliament's assumption of the power to regulate the qualifications of both electors and the elected, and noted that"the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties."Ibid. [Footnote 68] Shortly thereafter, Page 395 U. S. 536 the Convention rejected both Gouverneur Morris' motion and the Committee's proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be "the judge of the . . . qualifications of its own members." Id. at 254.One other decision made the same day is very important to determining the meaning of Art. I, § 5. When the delegates reached the Committee of Detail's proposal to empower each House to expel its members, Madison"observed that the right of expulsion . . . was too important to be exercised by a bare majority of a quorum, and, in emergencies, [one] faction might be dangerously abused."Id. at 254. He therefore moved that "with the concurrence of two-thirds" be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approved without debate, although Gouverneur Morris noted his opposition. The importance of this decision cannot be overemphasized. None of the parties to this suit disputes that, prior to 1787, the legislative powers to judge qualifications and to expel were exercised by a majority vote. Indeed, without exception, the English and colonial antecedents to Art. I, § 5, cls. 1 and 2, support this conclusion. Thus, the Convention's decision to increase the vote required to expel, because that power was "too important to be exercised by a bare majority," while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted. [Footnote 69] Page 395 U. S. 537Respondents urge, however, that these events must be considered in light of what they regard as a very significant change made in Art. I, § 2, cl. 2, by the Committee of Style. When the Committee of Detail reported the provision to the Convention, it read:"Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of [in] the United States for at least three years before his election, and shall be, at the time of his election, a resident of the State in which he shall be chosen."Id. at 178. However, as finally drafted by the Committee of Style, these qualifications were stated in their present negative form. Respondents note that there are no records of the "deliberations" of the Committee of Style. Nevertheless, they speculate that this particular change was designed to make the provision correspond to the form used by Blackstone in listing the "standing incapacities" for membership in the House of Commons. See 1 W. Blackstone's Commentaries *175-176. Blackstone, who was an apologist for the anti-Wilkes forces in Parliament, [Footnote 70] Page 395 U. S. 538 had added to his Commentaries after Wilkes' exclusion the assertion that individuals who were not ineligible for the Commons under the standing incapacities could still be denied their seat if the Commons deemed them unfit for other reasons. [Footnote 71] Since Blackstone's Commentaries was widely circulated in the Colonies, respondents further speculate that the Committee of Style rephrased the qualifications provision in the negative to clarify the delegates' intention"only to prescribe the standing incapacities without imposing any other limit on the historic power of each house to judge qualifications on a case by case basis. [Footnote 72]"Respondents' argument is inherently weak, however, because it assumes that legislative bodies historically possessed the power to judge qualifications on a case-by-case basis. As noted above, the basis for that conclusion was the Walpole and Wilkes cases, which, by the time of the Convention, had been denounced by the House of Commons and repudiated by at least one State government. Moreover, respondents' argument misrepresents the function of the Committee of Style. It was appointed only "to revise the stile of and arrange the articles which had been agreed to. . . ." 2 Farrand 553. Page 395 U. S. 539"[T]he Committee . . . had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so, and certainly the Convention had no belief . . . that any important change was, in fact, made in the provisions as to qualifications adopted by it on August 10. [Footnote 73]"Petitioners also argue that the post-Convention debates over the Constitution's ratification support their interpretation of § 5. For example, they emphasize Hamilton's reply to the anti-federalist charge that the new Constitution favored the wealthy and well born:"The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature."The Federalist Papers 371 (Mentor ed.1961). (Emphasis in last sentence added.) Page 395 U. S. 540Madison had expressed similar views in an earlier essay, [Footnote 74] and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue.Respondents counter that Hamilton was actually addressing himself to criticism of Art. I, § 4, which authorizes Congress to regulate the times, places, and manner of electing members of Congress. They note that prominent anti-federalists had argued that this power could be used to "confer on the rich and well-born all honours." Brutus No. IV, N.Y. Journal, Nov. 29, 1787, p. 7. (Emphasis in original.) Respondents' contention, however, ignores Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution. [Footnote 75]The debates at the state conventions also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution. Before the New York convention, for example, Hamilton emphasized:"[T]he true principle of a republic is that Page 395 U. S. 541 the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed."2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as Elliot's Debates). [Footnote 76] In Virginia, where the Federalists faced powerful opposition by advocates of popular democracy, Wilson Carey Nicholas, a future member of both the House and Senate and later Governor of the State, met the arguments that the new Constitution violated democratic principles with the following interpretation of Art. I, § 2, cl. 2, as it respects the qualifications of the elected:"It has ever been considered a great security to liberty that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state."3 Elliot's Debates 8.c. Post-Ratification.As clear as these statements appear, respondents dismiss them as "general statements . . . directed to other issues." [Footnote 77] They suggest that far more relevant is Congress' own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded members-elect for reasons other than their Page 395 U. S. 542 failure to meet the Constitution's standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution.Congress was first confronted with the issue in 1807, [Footnote 78] when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the House Committee of Elections reasoned:"The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications, and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules. . . ."17 Annals of Cong. 871 (1807). Lest there be any misunderstanding of the basis for the committee's recommendation, during the ensuing debate, the chairman explained the principles by which the committee was governed:"The Committee of Elections considered the qualifications of members to have been unalterably determined Page 395 U. S. 543 by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them. . . . Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only. These are the principles on which the Election Committee have made up their report, and upon which their resolution is founded."Id. at 872. The chairman emphasized that the committee's narrow construction of the power of the House to judge qualifications was compelled by the "fundamental principle in a free government," id. at 873, that restrictions upon the people to choose their own representatives must be limited to those "absolutely necessary for the safety of the society." Id. at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution, the House agreed by a vote of 89 to 18 to seat Congressman McCreery. Id. at 1237. See 1 A. Hinds, Precedents of the House of Representatives of the United States § 414 (1907) (hereinafter cited as Hinds).There was no significant challenge to these principles for the next several decades. [Footnote 79] They came under heavy Page 395 U. S. 544 attack, however,"during the stress of civil war, [but initially] the House of Representatives declined to exercise the power [to exclude], even under circumstances of great provocation. [Footnote 80]"Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, p. 7 (1967). The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war's wake. In 1868, the House voted for the first time in its history to exclude a member-elect. It refused to seat two duly elected representatives for giving aid and comfort to the Confederacy. See 1 Hinds § § 449-451. [Footnote 81]"This change was produced by the North's bitter emnity toward those who failed to support the Union cause during the war, and was effected by the Radical Republican domination of Congress. It was a shift brought about by the naked urgency of power, and was given little doctrinal support."Comment, Legislative Exclusion: Julian Bond and Adam Clayton Powell, 35 U.Chi.L.Rev. 151, 157 (1967). [Footnote 82] From that time until Page 395 U. S. 545 the present, congressional practice has been erratic; [Footnote 83] and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the Page 395 U. S. 546 Constitution, there were frequently vigorous dissents. [Footnote 84] Even the annotations to the official manual of procedure for the 90th Congress manifest doubt as to the House's power to exclude a member-elect who has met the constitutionally prescribed qualifications. See Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, pp. 7-8 (1967).Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. See Note, The Power of a House of Congress to Judge the Qualifications of its Members, 81 Harv.L.Rev. 673, 679 (1968). [Footnote 85] That an unconstitutional Page 395 U. S. 547 action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress' own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight. The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen's intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, 272 U. S. 52, 272 U. S. 175 (1926). And what evidence we have of Congress' early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution's requirements for membership.d. ConclusionHad the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow construction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, "that the people should choose whom they please to govern them." 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications would be to ignore Madison's warning, borne out in the Wilkes case and some of Congress' Page 395 U. S. 548 own post-Civil War exclusion cases, against "vesting an improper & dangerous power in the Legislature." 2 Farrand 249. Moreover, it would effectively nullify the Convention's decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but, in most cases, that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.For these reasons, we have concluded that Art. I, § 5, is, at most, a "textually demonstrable commitment" to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the "textual commitment" formulation of the political question doctrine does not bar federal courts from adjudicating petitioners' claims.2. Other Considerations.Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a "potentially embarrassing confrontation between coordinate branches" of the Federal Government. But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a "lack of the respect due [a] coordinate [branch] of government," nor does it involve an "initial policy determination of a kind clearly for nonjudicial Page 395 U. S. 549 discretion." Baker v. Carr, 369 U. S. 186, at 369 U. S. 217. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility. [Footnote 86] See United States v. Brown, 381 U. S. 437, 381 U. S. 462 (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S. 613-614 (1952) (Frankfurter, J., concurring); Myers v. United States, 272 U. S. 52, 272 U. S. 293 (1926) (Brandeis, J., dissenting).Nor are any of the other formulations of a political question "inextricable from the case at bar." Baker v. Carr, supra, at 369 U. S. 217. Petitioners seek a determination that the House was without power to exclude Powell from the 90th Congress, which, we have seen, requires an interpretation of the Constitution -- a determination for which clearly there are "judicially . . . manageable standards." Finally, a judicial resolution of petitioners' claim will not result in "multifarious pronouncements by various departments on one question." For, as we noted in Baker v. Carr, supra, at 369 U. S. 211, it is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison, 1 Cranch 137 (1803). Thus, we conclude that petitioners' claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable.VIICONCLUSIONTo summarize, we have determined the following: (1) This case has not been mooted by Powell's seating in Page 395 U. S. 550 the 91st Congress. (2) Although this action should be dismissed against respondent Congressmen, it may be sustained against their agents. (3) The 90th Congress' denial of membership to Powell cannot be treated as an expulsion. (4) We have jurisdiction over the subject matter of this controversy. (5) The case is justiciable.Further, analysis of the "textual commitment" under Art. I, § 5 (see 395 U. S. B(1)), has demonstrated that, in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.Petitioners seek additional forms of equitable relief, including mandamus for the release of petitioner Powell's backpay. The propriety of such remedies, however, is more appropriately considered in the first instance by the courts below. Therefore, as to respondents McCormack, Albert, Ford, Celler, and Moore, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. As to respondents Jennings, Johnson, and Miller, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded to the United States District Court for the District of Columbia with instructions to enter a declaratory judgment and for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtPowell v. McCormack, 395 U.S. 486 (1969)Powell v. McCormackNo. 138Argued April 21, 1969Decided June 16, 1969395 U.S. 486SyllabusPetitioner Powell, who had been duly elected to serve in the House of Representatives for the 90th Congress, was denied his seat by the adoption of House Resolution No. 278 which the Speaker had ruled was on the issue of excluding Powell and could be decided by majority vote. The House's action followed charges that Powell had misappropriated public funds and abused the process of the New York courts. Powell and certain voters of his congressional district thereafter brought suit in the District Court for injunctive, mandatory, and declaratory relief against respondents, certain named House members, the Speaker, Clerk, Sergeant at Arms, and Doorkeeper of the House, alleging that the Resolution barring his seating violated Art. I, § 2, cl. 1, of the Constitution as contrary to the mandate that House members be elected by the people of each State, and cl. 2, which sets forth the qualifications for membership of age, citizenship, and residence (all concededly met by Powell), which they claimed were exclusive. The complaint alleged that the House Clerk threatened to refuse to perform the service to which Powell as a duly elected Congressman was entitled; that the Sergeant at Arms refused to pay Powell's salary, and that the Doorkeeper threatened to deny Powell admission to the House chamber. The District Court granted respondents' motion to dismiss the complaint "for want of jurisdiction of the subject matter." The Court of Appeals affirmed on somewhat different grounds. While the case was pending in this Court, the 90th Congress ended and Powell was elected to and seated by the 91st Congress. Respondents contend that (1) the case is moot; (2) the Speech or Debate Clause (Art. I, § 6) forecloses judicial review; (3) the decision to exclude Powell is supported by the expulsion power in Art. I, § 5, under which the House, which "shall be the Judge of the . . . Qualifications of its own embers," can by a two-thirds vote (exceeded here) expel a member for any reason at all; (4) the Court lacks subject matter jurisdiction over this litigation, or, alternatively, Page 395 U. S. 487 (5) the litigation is not justiciable under general criteria or because it involves a political question.Held:1. The case has not been mooted by Powell's seating in the 91st Congress, since his claim for back salary remains a viable issue. Pp. 395 U. S. 495-500.(a) Powell's averments as to declaratory relief are sufficient. Alejandrino v. Quezon, 271 U. S. 528, distinguished. Pp. 395 U. S. 496-499.(b) The mootness of Powell's claim to a seat in the 90th Congress does not affect the viability of his back salary claim with respect to the term for which he was excluded. Bond v. Floyd, 385 U. S. 116. Pp. 395 U. S. 499-500.2. Although the Speech or Debate Clause bars action against respondent Congressmen, it does not bar action against the other respondents, who are legislative employees charged with unconstitutional activity, Kilbourn v. Thompson, 103 U. S. 168; Dombrowski v. Eastland, 387 U. S. 82, and the fact that House employees are acting pursuant to express orders of the House does not preclude judicial review of the constitutionality of the underlying legislative decision. Pp. 395 U. S. 501-506.3. House Resolution No. 278 was an exclusion proceeding, and cannot be treated as an expulsion proceeding (which House members have viewed as not applying to pre-election misconduct). This Court will not speculate whether the House would have voted to expel Powell had it been faced with that question. Pp. 395 U. S. 506-512.4. The Court has subject matter jurisdiction over petitioners' action. Pp. 395 U. S. 512-516.(a) The case is one "arising under" the Constitution within the meaning of Art. III, since petitioners' claims "will be sustained if the Constitution . . . [is] given one construction and will be defeated if it [is] given another." Bell v. Hood, 327 U. S. 678. Pp. 395 U. S. 513-514.(b) The district courts are given a broad grant of jurisdiction by 28 U.S.C. § 1331(a), over "all civil actions wherein the matter in controversy . . . arises under the Constitution . . . ," and, while that grant is not entirely coextensive with Art. III, there is no indication that § 1331(a) was intended to foreclose federal courts from entertaining suits involving the seating of Congressmen. Pp. 395 U. S. 514-516.5. This litigation is justiciable because the claim presented and the relief sought can be judicially resolved. Pp. 395 U. S. 516-518.(a) Petitioners' claim does not lack justiciability on the ground that the House's duty cannot be judicially determined, since, if Page 395 U. S. 488 petitioners are correct, the House had a duty to seat Powell once it determined that he met the standing qualifications set forth in the Constitution. P. 395 U. S. 517.(b) The relief sought is susceptible of judicial resolution, since, regardless of the appropriateness of a coercive remedy against House personnel (an issue not here decided), declaratory relief is independently available. Pp. 395 U. S. 517-518.6. The case does not involve a "political question," which, under the separation of powers doctrine, would not be justiciable. Pp. 395 U. S. 518-549.(a) The Court's examination of relevant historical materials shows at most that Congress' power under Art. I, § 5, to judge the "Qualifications of its Members" is a "textually demonstrable constitutional commitment . . . to [that] co-ordinate political department of government" (Baker v. Carr, 369 U. S. 186, 369 U. S. 217) to judge only standing qualifications which are expressly set forth in the Constitution; hence, the House has no power to exclude a member-elect who meets the Constitution's membership requirements. Pp. 395 U. S. 518-548.(b) The case does not present a political question in the sense, also urged by respondents, that it would entail a "potentially embarrassing confrontation between coordinate branches" of the Government, since our system of government requires federal courts on occasion to interpret the Constitution differently from other branches. Pp. 395 U. S. 548-549.7. In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution. P. 395 U. S. 550.129 U.S.App.D.C. 354, 395 F.2d 577, affirmed in part, reversed in part, and remanded to the District Court for entry of a declaratory judgment and for further proceedings. Page 395 U. S. 489

1991_91-119

WILLIAM WRIGLEY, JR., CO.JUSTICE SCALIA delivered the opinion of the Court. Section 101(a) of Public Law 86-272, 73 Stat. 555, 15 U. S. C. § 381, prohibits a State from taxing the income of a corporation whose only business activities within the State consist of "solicitation of orders" for tangible goods, provided that the orders are sent outside the State for approval and the goods are delivered from out of state. The issue in this case is whether respondent's activities in Wisconsin fell outside the protection of this provision.IRespondent William Wrigley, Jr., Co., is the world's largest manufacturer of chewing gum. Based in Chicago, it sells gum nationwide through a marketing system that divides the country into districts, regions, and territories. During the relevant period (1973-1978), the midwestern district included a Milwaukee region, covering most of Wisconsin andGeneral, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Daniel E. Lungren of California, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Warren Price III of Hawaii, Larry EchoHawk of Idaho, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, Frederic J. Cowan of Kentucky, William J. Guste, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Marc Racicot of Montana, Don Stenberg of Nebraska, Tom Udall of New Mexico, Robert Abrams of New York, and Lacy H. Thornburg of North Carolina; for the State of New Jersey et al. by Robert J. Del Tufo, Attorney General of New Jersey, and Mary R. Hamill and Sarah T. Darrow, Deputy Attorneys General, Charles E. Cole, Attorney General of Alaska, and Winston Bryant, Attorney General of Arkansas; for the City of New York by O. Peter Sherwood, Edward F. X. Hart, and Stanley Buchsbaum; and for the Multistate Tax Commission by Paull Mines.Briefs of amici curiae urging affirmance were filed for the Committee on State Taxation of the Council of State Chambers of Commerce by Amy Eisenstadt and Paul H. Frankel; and for the Direct Selling Association by Mario Brossi, Joseph N. Mariano, M. Douglas Adkins, Neil J. O'Brien, and Camille R. Comeau.217parts of other States, which was subdivided into several geographic territories.The district manager for the midwestern district had his residence and company office in Illinois, and visited Wisconsin only six to nine days each year, usually for a sales meeting or to call on a particularly important account. The regional manager of the Milwaukee region resided in Wisconsin, but Wrigley did not provide him with a company office. He had general responsibility for sales activities in the region, and would typically spend 80-to-95% of his time working with the sales representatives in the field or contacting certain "key" accounts. The remainder of his time was devoted to administrative activities, including writing and reviewing company reports, recruiting new sales representatives, making recommendations to the district manager concerning the hiring, firing, and compensation of sales representatives, and evaluating their performance. He would preside at full-day sales strategy meetings for all regional sales representatives once or twice a year. The manager from 1973 to 1976, John Kroyer, generally held these meetings in the "office" he maintained in the basement of his home, whereas his successor, Gary Hecht, usually held them at a hotel or motel. (Kroyer claimed income tax deductions for this office, but Wrigley did not reimburse him for it, though it provided a filing cabinet.) Mr. Kroyer also intervened two or three times a year to help arrange a solution to credit disputes between the Chicago office and important local accounts. Mr. Hecht testified that he never engaged in such activities, although Wrigley's formal position description for regional sales manager continued to list as one of the assigned duties "[r]epresent[ing] the company on credit problems as necessary."The sales or "field" representatives in the Milwaukee region, each of whom was assigned his own territory, resided in Wisconsin. They were provided with company cars, but not with offices. They were also furnished a stock of gum218WILLIAM WRIGLEY, JR., CO.(with an average wholesale value of about $1,000), a supply of display racks, and promotional literature. These materials were kept at home, except that one salesman, whose apartment was too small, rented storage space at about $25 per month, for which he was reimbursed by Wrigley.On a typical day, the sales representative would load up the company car with a supply of display racks and several cases of gum, and would visit accounts within his territory. In addition to handing out promotional materials and free samples, and directly requesting orders of Wrigley products, he would engage in a number of other activities which Wrigley asserts were designed to promote sales of its products. He would, for example, provide free display racks to retailers (perhaps several on any given day), and would seek to have these new racks, as well as pre-existing ones, prominently located. The new racks were usually filled from the retailer's existing stock of Wrigley gum, but it would sometimes happen-perhaps once a month-that the retailer had no Wrigley products on hand and did not want to wait until they could be ordered from the wholesaler. In that event, the rack would be filled from the stock of gum in the salesman's car. This gum, which would have a retail value of $15 to $20, was not provided without charge. The representative would issue an "agency stock check" to the retailer, indicating the quantity supplied; he would send a copy of this to the Chicago office or to the wholesaler, and the retailer would ultimately be billed (by the wholesaler) in the proper amount.When visiting a retail account, Wrigley's sales representative would also check the retailer's stock of gum for freshness, and would replace stale gum at no cost to the retailer. This was a regular part of a representative's duties, and at any given time up to 40% of the stock of gum in his possession would be stale gum that had been removed from retail stores. After accumulating a sufficient amount of stale product, the representative either would ship it back to219Wrigley's Chicago office or would dispose of it at a local Wisconsin landfill.Wrigley did not own or lease real property in Wisconsin, did not operate any manufacturing, training, or warehouse facility, and did not have a telephone listing or bank account. All Wisconsin orders were sent to Chicago for acceptance, and were filled by shipment through common carrier from outside the State. Credit and collection activities were similarly handled by the Chicago office. Although Wrigley engaged in print, radio, and television advertising in Wisconsin, the purchase and placement of that advertising was managed by an independent advertising agency located in Chicago.Wrigley had never filed tax returns or paid taxes in Wisconsin; indeed, it was not licensed to do business in that State. In 1980, petitioner Wisconsin Department of Revenue concluded that the company's in-state business activities during the years 1973-1978 had been sufficient to support imposition of a franchise tax, and issued a tax assessment on a percentage of the company's apportionable income for those years. Wrigley objected to the assessment, maintaining that its Wisconsin activities were limited to "solicitation of orders" within the meaning of 15 U. S. C. § 381, and that it was therefore immune from Wisconsin franchise taxes. After an evidentiary hearing, the Wisconsin Tax Appeals Commission unanimously upheld the imposition of the tax. CCH Wis. Tax Rep. , 202-792 (1986). It later reaffirmed this decision, with one commissioner dissenting, after the County Circuit Court vacated the original order on procedural grounds. CCH Wis. Tax Rep. , 202-926 (1987). The County Circuit Court then reversed on the merits, CCH Wis. Tax Rep. , 203-000 (1988), but that decision was in turn reversed by the Wisconsin Court of Appeals, with one judge dissenting. 153 Wis. 2d 559, 451 N. W. 2d 444 (1989). The Wisconsin Supreme Court, in a unanimous opinion, reversed yet once again, thus finally disallowing the Wisconsin tax.220WILLIAM WRIGLEY, JR., CO.160 Wis. 2d 53, 465 N. W. 2d 800 (1991). We granted the State's petition for certiorari, 502 U. S. 807 (1991).IIIn Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 454 (1959), we considered Minnesota's imposition of a properly apportioned tax on the net income of an Iowa cement corporation whose "activities in Minnesota consisted of a regular and systematic course of solicitation of orders for the sale of its products, each order being subject to acceptance, filling and delivery by it from its plant [in Iowa]." The company's salesmen, operating out of a threeroom office in Minneapolis rented by their employer, solicited purchases by cement dealers and by customers of cement dealers. They also received complaints about goods that had been lost or damaged in shipment, and forwarded these back to Iowa for further instructions. Id., at 454-455. The cement company's contacts with Minnesota were otherwise very limited; it had no bank account, real property, or warehoused merchandise in the State. We nonetheless rejected Commerce Clause and due process challenges to the tax:"We conclude that net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same." Id., at 452.The opinion in Northwestern States was handed down in February 1959. Less than a week later, we granted a motion to dismiss (apparently on mootness grounds) the appeal of a Louisiana Supreme Court decision that had rejected due process and Commerce Clause challenges to the imposition of state net-income taxes based on local solicitation of orders that were sent out of state for approval and shipping. Brown-Forman Distillers Corp. v. Collector of Revenue, 234221La. 651, 101 So. 2d 70 (1958), appeal dism'd, 359 U. S. 28 (1959). That decision was particularly significant because, unlike the Iowa cement company in Northwestern States, the Kentucky liquor company in Brown-Forman did not lease (or own) any real estate in the taxing State. Rather, its activities were limited to"the presence of 'missionary men' who call upon wholesale dealers [in Louisiana] and who, on occasion, accompany the salesmen of these wholesalers to assist them in obtaining a suitable display of appellant's merchandise at the business establishments of said retailers .... " 234 La., at 653-654, 101 So. 2d, at 70.Two months later, we denied certiorari in another Louisiana case upholding the imposition of state tax on the income of an out-of-state corporation that neither leased nor owned real property in Louisiana and whose only activities in that State "consist[ed] of the regular and systematic solicitation of orders for its product by fifteen salesmen." International Shoe Co. v. Fontenot, 236 La. 279, 280, 107 So. 2d 640 (1958), cert. denied, 359 U. S. 984 (1959).Although our refusals to disturb the Louisiana Supreme Court's decisions in Brown-Forman and International Shoe did not themselves have any legal significance, see Hopfmann v. Connolly, 471 U. S. 459, 460-461 (1985); United States v. Carver, 260 U. S. 482, 490 (1923), our actions in those cases raised concerns that the broad language of Northwestern States might ultimately be read to suggest that a company whose only contacts with a State consisted of sending "drummers" or salesmen into that State could lawfully be subjected to (properly apportioned) income taxation based on the interstate sales those representatives generated. In Heublein, Inc. v. South Carolina Tax Comm'n, 409 U. S. 275 (1972), we reviewed the history of § 381 and noted that the complaints of the business community over222WILLIAM WRIGLEY, JR., CO.the uncertainty created by these cases were the driving force behind the enactment of § 381:"'Persons engaged in interstate commerce are in doubt as to the amount of local activities within a State that will be regarded as forming a sufficient ... connectio[n] with the State to support the imposition of a tax on net income from interstate operations and 'properly apportioned' to the State.'" Id., at 280, n. 5 (quoting S. Rep. No. 658, 86th Cong., 1st Sess., 2-3 (1959)).1Within months after our actions in these three cases, Congress responded to the concerns that had been expressed by enacting Public Law 86-272, which established what the relevant section heading referred to as a "minimum standard" for imposition of a state net-income tax based on solicitation of interstate sales: "No State ... shall have power to impose, for any taxable year ... , a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following:"(1) the solicitation of orders by such person, or his representative, in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State; and"(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the1 See also H. R. Rep. No. 936, 86th Cong., 1st Sess., 2 (1959) ("While it is true that the denial of certiorari is not a decision on the merits, and although grounds other than the preceden[t] of the Northwestern [States] cas[e] were advanced as a basis for sustaining the Brown-Forman and International Shoe decisions, the fact that a tax was successfully imposed in those cases has given strength to the apprehensions which had already been generated among small and moderate size businesses").223benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1)." 73 Stat. 555, 15 U. S. C. § 381(a).Although we have stated that § 381 was "designed to define clearly a lower limit" for the exercise of state taxing power, and that "Congress' primary goal" was to provide "[c]larity that would remove [the] uncertainty" created by Northwestern States, see Heublein, supra, at 280, experience has proved § 381's "minimum standard" to be somewhat less than entirely clear. The primary sources of confusion, in this case as in others, have been two questions: (1) what is the scope of the crucial term "solicitation of orders"; and (2) whether there is a de minimis exception to the activity (beyond "solicitation of orders") that forfeits § 381 immunity. We address these issues in turn.ASection 381(a)(1) confers immunity from state income taxes on any company whose "only business activities" in that State consist of "solicitation of orders" for interstate sales. "Solicitation," commonly understood, means "[a]sking" for, or "enticing" to, something, see Black's Law Dictionary 1393 (6th ed. 1990); Webster's Third New International Dictionary 2169 (1981) ("solicit" means "to approach with a request or plea (as in selling or begging)"). We think it evident that in this statute the term includes, not just explicit verbal requests for orders, but also any speech or conduct that implicitly invites an order. Thus, for example, a salesman who extols the virtues of his company's product to the retailer of a competitive brand is engaged in "solicitation" even if he does not come right out and ask the retailer to buy some. The key question in this case is whether, and to what extent, "solicitation of orders" covers activities that neither explicitly nor implicitly propose a sale.224WILLIAM WRIGLEY, JR., CO.In seeking the answer to that question, we reject the proposition put forward by Wisconsin and its amici that we must construe § 381 narrowly because we said in Heublein that "'unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the Federal-State balance,'" 409 U. S., at 281-282 (citation omitted). That principle-which we applied in Heublein to reject a suggested inference from § 381 that States cannot regulate solicitation in a manner that might cause an out-of-state company to forfeit its tax immunity-has no application in the present case. Because § 381 unquestionably does limit the power of States to tax companies whose only in-state activity is "the solicitation of orders," our task is simply to ascertain the fair meaning of that term. FMC Corp. v. Holliday, 498 U. S. 52, 57 (1990).Wisconsin views some courts as having adopted the position that an out-of-state company forfeits its § 381 immunity if it engages in "any activity other than requesting the customer to purchase the product." Brief for Petitioner 21; see also id., at 19, n. 8 (citing Hervey v. AMF Beaird, Inc., 250 Ark. 147, 464 S. W. 2d 557 (1971); Clairol, Inc. v. Kingsley, 109 N. J. Super. 22, 262 A. 2d 213, aff'd, 57 N. J. 199, 270 A. 2d 702 (1970), appeal dism'd, 402 U. S. 902 (1971)).2 Arguably supporting this interpretation is subsection (c) of § 381,2 Amici New Jersey et al. contend that our summary disposition of Clairol binds us to this narrow construction of § 381(a). Though Clairol is frequently cited for this construction, the opinion in the case does not in fact recite it. In any event, our summary disposition affirmed only the judgment below, and cannot be taken as adopting the reasoning of the lower court. Anderson v. Celebrezze, 460 U. S. 780, 784, n. 5 (1983); Fusari v. Steinberg, 419 U. S. 379, 391-392 (1975) (Burger, C. J., concurring). The judgment in Clairol would have been the same even under a broader construction of "solicitation of orders," since the company's in-state activities included sending nonsales representatives to provide customers technical assistance in the use of Clairol products. 109 N. J. Super., at 29-30, 262 A. 2d, at 217. See United States Tobacco Co. v. Commonwealth, 478 Pa. 125, 136-137,386 A. 2d 471, 476-477, cert. denied, 439 U. S. 880 (1978); Gillette Co. v. State Tax Comm'n, 56 App. Div. 2d 475, 479, 393 N. Y. S. 2d 186, 189 (1977), aff'd, 45 N. Y. 2d 846, 382 N. E. 2d 764 (1978).225which expands the immunity of subsection (a) when the outof-state seller does its marketing through independent contractors, to include not only solicitation of orders for sales, but also actual sales, and in addition "the maintenance ... of an office ... by one or more independent contractors whose activities ... consist solely of making sales, or soliciting orders for sales .... "3 The plain implication of this is that without that separate indulgence the maintenance of an office for the exclusive purpose of conducting the exempted solicitation and sales would have provided a basis for taxation-i. e., that the phrase "solicitation of orders" does not embrace the maintenance of an office for the exclusive purpose of soliciting orders. Of course the phrase "solicitation of orders" ought to be accorded a consistent meaning within the section, see Sorenson v. Secretary of Treasury, 475 U. S. 851, 860 (1986), and if it does not embrace maintaining an office for soliciting in subsection (c), it does not do so in subsection (a) either. One might argue that the necessity of special permission for an office establishes that the phrase "solicitation of orders" covers only the actual requests for purchases or, at most, the actions absolutely essential to making those requests.We think, however, that would be an unreasonable reading of the text. That the statutory phrase uses the term "solicitation" in a more general sense that includes not merely the ultimate act of inviting an order but the entire process associated with the invitation is suggested by the fact that § 3813 Title 15 U. S. C. § 381 (c) reads in its entirety as follows:"For purposes of subsection (a) of this section, a person shall not be considered to have engaged in business activities within a State during any taxable year merely by reason of sales in such State, or the solicitation of orders for sales in such State, of tangible personal property on behalf of such person by one or more independent contractors, or by reason of the maintenance, of an office in such State by one or more independent contractors whose activities on behalf of such person in such State consist solely of making sales, or soliciting orders for sales, or [sic] tangible personal property."226WILLIAM WRIGLEY, JR., CO.describes "the solicitation of orders" as a subcategory, not of in-state acts, but rather of in-state "business activities"-a term that more naturally connotes courses of conduct. See Webster's Third New International Dictionary 22 (1981) (defining "activity" as "an occupation, pursuit, or recreation in which a person is active-often used in pI. <business activities>"). Moreover, limiting "solicitation of orders" to actual requests for purchases would reduce § 381(a)(1) to a nullity. (It is obviously impossible to make a request without some accompanying action, such as placing a phone call or driving a car to the customer's location.) And limiting it to acts "essential" for making requests would engender endless uncertainty, contrary to the whole purpose of the statute. (Is it "essential" to use a company car, or to take a taxi, in order to conduct in-person solicitation? For that matter, is it "essential" to solicit in person?) It seems to us evident that "solicitation of orders" embraces request-related activity that is not even, strictly speaking, essential, or else it would not cover salesmen's driving on the State's roads, spending the night in the State's hotels, or displaying within the State samples of their product. We hardly think the statute had in mind only day-trips into the taxing jurisdiction by emptyhanded drummers on foot. See United States Tobacco Co. v. Commonwealth, 478 Pa. 125, 140,386 A. 2d 471,478 ("Congress could hardly have intended to exempt only walking solicitors"), cert. denied, 439 U. S. 880 (1978). And finally, this extremely narrow interpretation of "solicitation" would cause § 381 to leave virtually unchanged the law that existed before its enactment. Both Brown-Forman (where the salesman assisted wholesalers in obtaining suitable displays for whiskey at retail stores) and International Shoe (where hotel rooms were used to display shoes) would be decided as they were before, upholding the taxation.At the other extreme, Wrigley urges that we adopt a broad interpretation of "solicitation" which it describes as having been adopted by the Wisconsin Supreme Court based on that227court's reading of cases in Pennsylvania and New York, see 160 Wis. 2d, at 82, 465 N. W. 2d, at 811-812 (citing United States Tobacco Co. v. Commonwealth, supra; Gillette Co. v. State Tax Comm'n, 56 App. Div. 2d 475,393 N. Y. S. 2d 186 (1977), aff'd, 45 N. Y. 2d 846, 382 N. E. 2d 764 (1978)). See also Indiana Dept. of Revenue v. Kimberly-Clark Corp., 275 Ind. 378, 384, 416 N. E. 2d 1264, 1268 (1981). According to Wrigley, this would treat as "solicitation of orders" any activities that are "ordinary and necessary 'business activities' accompanying the solicitation process" or are "routinely associated with deploying a sales force to conduct the solicitation, so long as there is no office, plant, warehouse or inventory in the State." Brief for Respondent 9, 19-20; see also J. Hellerstein, State Taxation , 6.11[2], p. 245 (1983) ("[S]olicitation ought to be held to embrace other normal incidents of activities of salesmen" or the "customary functions of sales representatives of out-of-state merchants"). We reject this "routinely-associated-with-solicitation" or "customarily-performed-by-salesmen" approach, since it converts a standard embracing only a particular activity ("solicitation") into a standard embracing all activities routinely conducted by those who engage in that particular activity ("salesmen"). If, moreover, the approach were to be applied (as respondent apparently intends) on an industry-byindustry basis, it would render the limitations of § 381(a) toothless, permitting "solicitation of orders" to be whatever a particular industry wants its salesmen to do.44 The dissent explicitly agrees with our rejection of the "ordinary and necessary" standard advocated by Wrigley. Post, at 236. It then proceeds, however, to adopt that very standard. It states that the test should be whether a given activity is one that "reasonable buyers would consider ... to be a part of the solicitation itself and not a significant and independent service or component of value." Post, at 237. It is obvious that those activities that a reasonable buyer would consider "part of the solicitation itself" rather than an "independent service" are those that are customarily performed in connection with solicitation. Any doubt that this is what the dissent intends is removed by its later elaboration of its228WILLIAM WRIGLEY, JR., CO.In any case, we do not regard respondent's proposed approach to be an accurate characterization of the Wisconsin Supreme Court's opinion. The Wisconsin court construed "solicitation of orders" to reach only those activities that are "closely associated" with solicitation, industry practice being only one factor to be considered in judging the "close[ness]" of the connection between the challenged activity and the actual requests for orders. 160 Wis. 2d, at 82, 465 N. W. 2d, at 811-812. The problem with that standard, it seems to us, is that it merely reformulates rather than answers the crucial question. "What constitutes the 'solicitation of orders'?" becomes "What is 'closely related' to a solicitation request?" This fails to provide the "[c]larity that would remove uncertainty" which we identified as the primary goal of § 381. Heublein, 409 U. S., at 280.We proceed, therefore, to describe what we think the proper standard to be. Once it is acknowledged, as we have concluded it must be, that "solicitation of orders" covers more than what is strictly essential to making requests for purchases, the next (and perhaps the only other) clear line is the one between those activities that are entirely ancillary to requests for purchases-those that serve no independenttest in the context of the facts of this case. The dissent repeatedly inquires whether an activity is a "normal ac[t] of courtesy from seller to buyer," post, at 242 (emphasis added); whether it is a "common solicitation practic[e]," post, at 244 (emphasis added); and whether Wrigley "exceed[ed] the normal scope of solicitation," post, at 242 (emphasis added). Of course, given Wrigley's significant share of the Wisconsin chewing gum market, most activities it chooses to "conduc[t] in the course of solicitation," post, at 246, will be viewed as a normal part of the solicitation process itself. Had Wrigley's sales representatives routinely approved orders on the spot; or accepted payments on past-due accounts; or even made outright sales of gum, it is difficult to see how a reasonable buyer would have thought that was not "part of the solicitation itself"-it certainly has no "independent value" to him. Nothing in the text of the statute suggests that it was intended to confer tax immunity on whatever activities are engaged in by sales agents in a particular industry.229business function apart from their connection to the soliciting of orders-and those activities that the company would have reason to engage in anyway but chooses to allocate to its in-state sales force.5 Cf. National Tires, Inc. v. Lindley, 68 Ohio App. 2d 71, 78-79, 426 N. E. 2d 793, 798 (1980) (company's activities went beyond solicitation to "functions more commonly related to maintaining an on-going business"). Providing a car and a stock of free samples to salesmen is part of the "solicitation of orders," because the only reason to do it is to facilitate requests for purchases. Contrariwise, employing salesmen to repair or service the company's products is not part of the "solicitation of orders," since there is good reason to get that done whether or not the company has a sales force. Repair and servicing may help to increase purchases; but it is not ancillary to requesting purchases, and cannot be converted into "solicitation" by merely being assigned to salesmen. See, e. g., Herff Jones Co. v. State Tax Comm'n, 247 Ore. 404, 412, 430 P. 2d 998, 1001-10025 The dissent states that ancillarity should be judged, not from the perspective of the seller, but from the persective of the buyer. Post, at 237 (test is whether "reasonable buyers would consider [the activities] to be a part of the solicitation itself") (emphasis added); post, at 243 ("The test I propose ... requires an objective assessment from the vantage point of a reasonable buyer") (emphasis added); post, at 246 (question is whether the activities "possess independent value to the customer") (emphasis added). As explained earlier, see n. 4, supra, this rule inevitably results in a whatever-the-industry-wants standard, despite the dissent's unequivocal disavowal of such a test.The dissent also suggests that ancillarity should be judged by asking whether a particular challenged activity is "related to a particular sales call or to a particular sales solicitation," post, at 244 (emphasis added). This standard, besides being amorphous, cannot be correct. Those activities that are most clearly not immunized by the statute--e. g., actual sales, collection of funds-would seem to be the ones most closely "related" to particular acts of actual solicitation. And activities the dissent finds immunized in the present case-maintenance of a storage facility and use of a home office-are extremely remote.230WILLIAM WRIGLEY, JR., CO.(1967) (no § 381 immunity for sales representatives' collection activities).6As we have discussed earlier, the text of the statute (the "office" exception in subsection (c)) requires one exception to this principle: Even if engaged in exclusively to facilitate requests for purchases, the maintenance of an office within the State, by the company or on its behalf, would go beyond the "solicitation of orders." We would not make any more generalized exception to our immunity standard on the basis of the "office" provision. It seemingly represents a judgment that a company office within a State is such a significant manifestation of company "presence" that, absent a specific exemption, income taxation should always be allowed. Jantzen, Inc. v. District of Columbia, 395 A. 2d 29, 32 (D. C. 1978); see generally Hellerstein, State Taxation , 6.4.Wisconsin urges us to hold that no postsale activities can be included within the scope of covered "solicitation." We decline to do so. Activities that take place after a sale will ordinarily not be entirely ancillary in the sense we have described, see, e. g., Miles Laboratories v. Department of Revenue, 274 Ore. 395, 400, 546 P. 2d 1081, 1083 (1976) (replacing damaged goods), but we are not prepared to say that will invariably be true. Moreover, the presale/postsale distinction is hopelessly unworkable. Even if one disregards the confusion that may exist concerning when a sale takes place, cf. Uniform Commercial Code § 2-401, 1A U. L. A. 675 (1989), manufacturers and distributors ordinarily have ongoing relationships that involve continuous sales, making it often im-6 Contrary to the dissent's suggestion, post, at 242, 246, both BrownForman Distillers Corp. v. Collector of Revenue, 234 La. 651, 101 So. 2d 70 (1958), and International Shoe Co. v. Fontenot, 236 La. 279, 107 So. 2d 640 (1958), would have been decided differently under these principles. The various activities at issue in those cases (renting a room for temporary display of sample products; assisting wholesalers in obtaining suitable product display in retail shops) would be considered merely ancillary to either wholesale solicitation or downstream (consumer or retailer) solicitation.231possible to determine whether a particular incidental activity was related to the sale that preceded it or the sale that followed it.BThe Wisconsin Supreme Court also held that a company does not necessarily forfeit its tax immunity under § 381 by performing some in-state business activities that go beyond "solicitation of orders"; rather, it said, "[c]ourts should also analyze" whether these additional activities were "'deviations from the norm'" or "de minimis activities." 160 Wis. 2d, at 82, 465 N. W. 2d, at 811 (citation omitted). Wisconsin asserts that the plain language of the statute bars this recognition of a de minimis exception, because the immunity is limited to situations where "the only business activities within [the] State" are those described, 15 U. S. C. § 381 (emphasis added). This ignores the fact that the venerable maxim de minimis non curat lex ("the law cares not for trifles") is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept. See, e. g., Republic of Argentina v. Weltover, Inc., 504 U. S. 607, 618 (1992); Hudson v. McMillian, 503 U. S. 1, 8-9 (1992); Ingraham v. Wright, 430 U. S. 651, 674 (1977); Abbott Laboratories v. Portland Retail Druggists Assn., Inc., 425 U. S. 1, 18 (1976); Industrial Assn. of San Francisco v. United States, 268 U. S. 64, 84 (1925). It would be especially unreasonable to abandon normal application of the de minimis principle in construing § 381, which operates in such stark, all-or-nothing fashion: A company either has complete net-income tax immunity or it has none at all, even for its solicitation activities. Wisconsin's reading of the statute renders a company liable for hundreds of thousands of dollars in taxes if one of its salesmen sells a 10-cent item in state. Finally, Wisconsin is wrong in asserting that application of the de minimis principle "excise[s] the word 'only' from the statute." Brief for Petitioner 27. The word "only" places232WILLIAM WRIGLEY, JR., CO.a strict limit upon the categories of activities that are covered by § 381, not upon their substantiality. See, e. g., Drackett Prods. Co. v. Conrad, 370 N. W. 2d 723, 726 (N. D. 1985); Kimberly Clark, 275 Ind., at 383-384, 416 N. E. 2d, at 1268.Whether a particular activity is a de minimis deviation from a prescribed standard must, of course, be determined with reference to the purpose of the standard. Section 381 was designed to increase-beyond what Northwestern States suggested was required by the Constitution-the connection that a company could have with a State before subjecting itself to tax. Accordingly, whether in-state activity other than "solicitation of orders" is sufficiently de minimis to avoid loss of the tax immunity conferred by § 381 depends upon whether that activity establishes a nontrivial additional connection with the taxing State.IIIWisconsin asserts that at least six activities performed by Wrigley within its borders went beyond the "solicitation of orders": the replacement of stale gum by sales representatives; the supplying of gum through "agency stock checks"; the storage of gum, racks, and promotional materials; the rental of space for storage; the regional managers' recruitment, training, and evaluation of employees; and the regional managers' intervention in credit disputes.7 Since none of7Wisconsin has also argued that the scope of the regional managers' activities caused their residences to be, "[in] economic reality," Wrigley offices in the State. Brief for Petitioner 32. If this means that having resident salesmen without offices can sometimes be as commercially effective as having nonresident salesmen with offices, perhaps it is true. But it does not establish that Wrigley "maintained an office" in the sense necessary to come within the exception to the "entirely ancillary" standard we have announced. See supra, at 230. Nor does the regional managers' occasional use of their homes for meetings with salesmen, or Kroyer's uncompensated dedication of a portion of his home basement to his own office. The maintenance of an office necessary to trigger the exception233these activities can reasonably be viewed as requests for orders covered by § 381, Wrigley was subject to tax unless they were either ancillary to requesting orders or de minimis.We conclude that the replacement of stale gum, the supplying of gum through "agency stock checks," and the storage of gum were not ancillary. As to the first: Wrigley would wish to attend to the replacement of spoiled product whether or not it employed a sales force. Because that activity serves an independent business function quite separate from requesting orders, it does not qualify for § 381 immunity. Miles Laboratories, 274 Ore., at 400,546 P. 2d, at 1083. Although Wrigley argues that gum replacement was a "promotional necessity" designed to ensure continued sales, Brief for Respondent 31, it is not enough that the activity facilitate sales; it must facilitate the requesting of sales, which this did not.8The provision of gum through "agency stock checks" presents a somewhat more complicated question. It appears from the record that this activity occurred only in connection with the furnishing of display racks to retailers, so that it was arguably ancillary to a form of consumer solicitation. Section 381(a)(2) shields a manufacturer's "missionary" request that an indirect customer (such as a consumer) place an order, if a successful request would ultimately result in an order's being filled by a § 381 "customer" of the manufac-must be more formally attributed to the out-of-state company itself, or to the agents of that company in their agency capacity-as was, for example, the rented office in Northwestern States.8 The dissent argues that this activity must be considered part of "solicitation" because, inter alia, it was "minimal," and not "significant." Post, at 243. We disagree. It was not, as the dissent suggests, a practice that involved simple "acts of courtesy" that occurred only because a salesman happened to be on the scene and did not wish to "harm the company." Post, at 242, 244. Wrigley deliberately chose to use its sales force to engage in regular and systematic replacement of stale product on a level that amounted to several thousand dollars per year, which is a lot of chewing gum.234WILLIAM WRIGLEY, JR., CO.turer, i. e., by the wholesaler who fills the orders of the retailer with goods shipped to the wholesaler from out of state. Cf. Gillette, 56 App. Div. 2d, at 482, 393 N. Y. S. 2d, at 191 ("Advice to retailers on the art of displaying goods to the public can hardly be more thoroughly solicitation ... "). It might seem, therefore, that setting up gum-filled display racks, like Wrigley's general advertising in Wisconsin, would be immunized by § 381(a)(2). What destroys this analysis, however, is the fact that Wrigley made the retailers pay for the gum, thereby providing a business purpose for supplying the gum quite independent from the purpose of soliciting consumers. Since providing the gum was not entirely ancillary to requesting purchases, it was not within the scope of "solicitation of orders." 9 And because the vast majority of the gum stored by Wrigley in Wisconsin was used in connection with stale gum swaps and agency stock checks, that storage (and the indirect rental of space for that storage) was in no sense ancillary to "solicitation."By contrast, Wrigley's in-state recruitment, training, and evaluation of sales representatives and its use of hotels and homes for sales-related meetings served no purpose apart from their role in facilitating solicitation. The same must be said of the instances in which Wrigley's regional sales manager contacted the Chicago office about "rather nasty" credit disputes involving important accounts in order to "get the account and [Wrigley's] credit department communicat-9 The dissent speculates, without any basis in the record, that Wrigley might have chosen to charge for the gum, not for the profit, but because giving it away would "lower the per unit cost of all goods purchased," which "could create either the fact or the perception that retailers were not receiving the same price." Post, at 245. Though Wrigley's motive for choosing to make a profit on these items seems to us irrelevant in any event, we cannot avoid observing how unlikely it is that this was the reason Wrigley did not include free gum in its (per-unit-cost-distorting) free racks, although it did, as the record shows, regularly give away other (presumably per-unit-cost-distorting) free gum. Wrigley itself did not have the temerity to make this argument.235ing." App. 71, 72. It hardly appears likely that this mediating function between the customer and the central office would have been performed by some other employee-some company ombudsman, so to speak-if the on-location sales staff did not exist. The purpose of the activity, in other words, was to ingratiate the salesman with the customer, thereby facilitating requests for purchases.Finally, Wrigley argues that the various nonimmune activities, considered singly or together, are de minimis. In particular, Wrigley emphasizes that the gum sales through "agency stock checks" accounted for only 0.00007% of Wrigley's annual Wisconsin sales, and in absolute terms amounted to only several hundred dollars a year. We need not decide whether any of the nonimmune activities was de minimis in isolation; taken together, they clearly are not. Wrigley's sales representatives exchanged stale gum, as a matter of regular company policy, on a continuing basis, and Wrigley maintained a stock of gum worth several thousand dollars in the State for this purpose, as well as for the less frequently pursued (but equally unprotected) purpose of selling gum through "agency stock checks." Although the relative magnitude of these activities was not large compared to Wrigley's other operations in Wisconsin, we have little difficulty concluding that they constituted a nontrivial additional connection with the State. Because Wrigley's business activities within Wisconsin were not limited to those specified in § 381, the prohibition on net-income taxation contained in that provision was inapplicable.***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

OCTOBER TERM, 1991SyllabusWISCONSIN DEPARTMENT OF REVENUE v.WILLIAM WRIGLEY, JR., CO.CERTIORARI TO THE SUPREME COURT OF WISCONSIN No. 91-119. Argued January 22, 1992-Decided June 19, 1992During 1973-1978, respondent chewing gum manufacturer, which is based in Chicago, sold its products in Wisconsin through a sales force consisting of a regional manager and various "field" representatives, all of whom engaged in various activities in addition to requesting orders from customers. Wisconsin orders were sent to Chicago for acceptance, and were filled by shipment through common carrier from outside the State. In 1980, petitioner Wisconsin Department of Revenue concluded that respondent's in-state business activities during the years in question had been sufficient to support imposition of a franchise tax. Respondent objected to the assessment of that tax, maintaining that it was immune under 15 U. S. C. § 381(a), which prohibits a State from taxing the income of a corporation whose only business activities within the State consist of "solicitation of orders" for tangible goods, provided that the orders are sent outside the State for approval and the goods are delivered from out of state. Ultimately, the State Supreme Court disallowed the imposition of the tax.Held: Respondent's activities in Wisconsin fell outside the protection of § 381(a). pp. 220-235.(a) In addition to any speech or conduct that explicitly or implicitly proposes a sale, "solicitation of orders" as used in § 381(a) covers those activities that are entirely ancillary to requests for purchases-those that serve no independent business function apart from their connection to the soliciting of orders. The statutory phrase should not be interpreted narrowly to cover only actual requests for purchases or the actions that are absolutely essential to making those requests, but includes the entire process associated with inviting an order. Thus, providing a car and a stock of free samples to salesmen is part of the "solicitation of orders," because the only reason to do it is to facilitate requests for purchases. On the other hand, the statutory phrase should not be interpreted broadly to include all activities that are routinely, or even closely, associated with solicitation or customarily performed by salesmen. Those activities that the company would have reason to engage in anyway but chooses to allocate to its in-state sales force are not covered. For example, employing salesmen to repair or service the company's products is not part of the "solicitation of orders," since there is215good reason to get that done whether or not the company has a sales force. Pp. 223-231.(b) There is a de minimis exception to the activities that forfeit § 381 immunity. Whether a particular activity is sufficiently de minimis to avoid loss of § 381 immunity depends upon whether that activity establishes a nontrivial additional connection with the taxing State. Pp. 231-232.(c) Respondent's Wisconsin business activities were not limited to those specified in § 381. Although the regional manager's recruitment, training, and evaluation of employees and intervention in credit disputes, as well as the company's use of hotels and homes for sales-related meetings, must be viewed as ancillary to requesting purchases, the sales representatives' practices of replacing retailers' stale gum without cost, of occasionally using "agency stock checks" to sell gum to retailers who had agreed to install new display racks, and of storing gum for these purposes at home or in rented space cannot be so viewed, since those activities constituted independent business functions quite separate from the requesting of orders and respondent had a business purpose for engaging in them whether or not it employed a sales force. Moreover, the nonimmune activities, when considered together, are not de minimis. While their relative magnitude was not large compared to respondent's other Wisconsin operations, they constituted a nontrivial additional connection with the State. Pp. 232-235.160 Wis. 2d 53, 465 N. W. 2d 800, reversed and remanded.SCALIA, J., delivered the opinion of the Court, in which WHITE, STEVENS, SOUTER, and THOMAS, JJ., joined, and in Parts I and II of which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 236. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C. J., and BLACKMUN, J., joined, post, p.236.F. Thomas Creeron III, Assistant Attorney General of Wisconsin, argued the cause for petitioner. With him on the briefs was James E. Doyle, Attorney General.E. Barrett Prettyman, Jr., argued the Cause for respondent. With him on the brief were Andre M. Saltoun, H. Randolph Williams, Barbara J. Janaszek, and Richard J. Sankovitz. **Briefs of amici curiae urging reversal were filed for the State of Iowa et al. by Bonnie J. Campbell, Attorney General of Iowa, Harry M. Griger, Special Assistant Attorney General, and Marcia Mason, Assistant Attorney216Full Text of Opinion

1995_95-83

JUSTICE O'CONNOR delivered the opinion of the Court. We consider whether § 7002 of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U. S. C. § 6972, authorizes a private cause of action to recover the prior cost of cleaning up toxic waste that does not, at the time of suit, continue to pose an endangerment to health or the environment. We conclude that it does not.IRespondent KFC Western, Inc. (KFC), owns and operates a "Kentucky Fried Chicken" restaurant on a parcel of property in Los Angeles. In 1988, KFC discovered during the course of a construction project that the property was contaminated with petroleum. The County of Los Angeles Department of Health Services ordered KFC to attend to the problem, and KFC spent $211,000 removing and disposing of the oil-tainted soil.Three years later, KFC brought this suit under the citizen suit provision of RCRA, 90 Stat. 2825, as amended, 42Massachusetts, and William L. Pardee, John Beling, and Karen McGuire, Assistant Attorneys General, Jeremiah W Nixon, Attorney General of Missouri, and James Layton, Joseph P. Bindbeutel, and Douglas E. Nelson, Assistant Attorneys General, and by the Attorneys General of their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Calvin E. Holloway of Guam, Chris Gorman of Kentucky, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, Darrell V. McGraw, Jr., of West Virginia, Robert A. Butterworth of Florida, Carla Stolla of Kansas, Richard P. Ieyoub of Louisiana, Deborah T. Poritz of New Jersey, Dennis C. Vacco of New York, and James E. Doyle of Wisconsin; for the State of Louisiana through its Department of Transportation and Development by William M. Hudson III, Edgar D. Gankendorff, Lawrence A. Durant, James M. Bookter, and Charley Hutchens; for the Bi-State Development Agency of the Missouri-Illinois Metropolitan District by Timothy W Burns, Jerome M. Organ, John Fox Arnold, and Nelson G. Wolff; and for Kaufman and Broad Home Corp. et al. by William N Kammer and Robert C. Longstreth.482u. S. C. § 6972(a), * seeking to recover these cleanup costs from petitioners Alan and Margaret Meghrig.KFC claimed that the contaminated soil was a "solid waste" covered by RCRA, see 42 U. S. C. § 6903(27), that it had previously posed an "imminent and substantial endangerment to health or the environment," see § 6972(a)(1)(B), and that the Meghrigs were responsible for "equitable restitution" of KFC's cleanup costs under § 6972(a) because, as prior owners of the property, they had contributed to the waste's "past or present handling, storage, treatment, transportation, or disposal." See App. 12-19 (first amended complaint).The District Court held that § 6972(a) does not permit recovery of past cleanup costs and that § 6972(a)(1)(B) does not authorize a cause of action for the remediation of toxic waste that does not pose an "imminent and substantial endangerment to health or the environment" at the time suit is filed, and dismissed KFC's complaint. App. to Pet. for Cert. A21A23. The Court of Appeals for the Ninth Circuit reversed, over a dissent, 49 F.3d 518, 524-528 (1995) (Brunetti, J.), finding that a district court had authority under § 6972(a) to award restitution of past cleanup costs, id., at 521-523, and*Section 6972(a) provides, in relevant part:"Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf-"(l)(B) against any person, including ... any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment ...." ... The district court shall have jurisdiction ... to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (l)(B), to order such person to take such other action as may be necessary, or both .... "483that a private party can proceed with a suit under § 6972(a)(1)(B) upon an allegation that the waste at issue presented an "imminent and substantial endangerment" at the time it was cleaned up, id., at 520-521.The Ninth Circuit's conclusion regarding the remedies available under RCRA conflicts with the decision of the Court of Appeals for the Eighth Circuit in Furrer v. Brown, 62 F.3d 1092, 1100-1101 (1995), and its interpretation of the "imminent endangerment" requirement represents a novel application of federal statutory law. We granted certiorari to address the conflict between the Circuits and to consider the correctness of the Ninth Circuit's interpretation of RCRA, 515 U. S. 1192 (1995), and now reverse.IIRCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. See Chicago v. Environmental Defense Fund, 511 U. S. 328, 331-332 (1994). Unlike the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 94 Stat. 2767, as amended, 42 U. S. C. § 9601 et seq., RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation of environmental hazards. Cf. General Electric Co. v. Litton Industrial Automation Systems, Inc., 920 F.2d 1415, 1422 (CA8 1990) (the "two ... main purposes of CERCLA" are "prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the responsible party"). RCRA's primary purpose, rather, is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, "so as to minimize the present and future threat to human health and the environment." 42 U. S. C. § 6902(b).Chief responsibility for the implementation and enforcement of RCRA rests with the Administrator of the Environ-484mental Protection Agency (EPA), see §§ 6928, 6973, but like other environmental laws, RCRA contains a citizen suit provision, § 6972, which permits private citizens to enforce its provisions in some circumstances.Two requirements of § 6972(a) defeat KFC's suit against the Meghrigs. The first concerns the necessary timing of a citizen suit brought under § 6972(a)(1)(B): That section permits a private party to bring suit against certain responsible persons, including former owners, "who ha[ve] contributed or who [are] contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." (Emphasis added.) The second defines the remedies a district court can award in a suit brought under § 6972(a)(1)(B):Section 6972(a) authorizes district courts "to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste ... , to order such person to take such other action as may be necessary, or both." (Emphasis added.)It is apparent from the two remedies described in § 6972(a) that RCRA's citizen suit provision is not directed at providing compensation for past cleanup efforts. Under a plain reading of this remedial scheme, a private citizen suing under § 6972(a)(1)(B) could seek a mandatory injunction, i. e., one that orders a responsible party to "take action" by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i. e., one that "restrains" a responsible party from further violating RCRA. Neither remedy, however, is susceptible of the interpretation adopted by the Ninth Circuit, as neither contemplates the award of past cleanup costs, whether these are denominated "damages" or "equitable restitution."In this regard, a comparison between the relief available under RCRA's citizen suit provision and that which Congress485has provided in the analogous, but not parallel, provisions of CERCLA is telling. CERCLA was passed several years after RCRA went into effect, and it is designed to address many of the same toxic waste problems that inspired the passage of RCRA. Compare 42 U. S. C. § 6903(5) (RCRA definition of "hazardous waste") and § 6903(27) (RCRA definition of "solid waste") with § 9601(14) (CERCLA provision incorporating certain "hazardous substance[s]," but specifically excluding petroleum). CERCLA differs markedly from RCRA, however, in the remedies it provides. CERCLA's citizen suit provision mimics § 6972(a) in providing district courts with the authority "to order such action as may be necessary to correct the violation" of any CERCLA standard or regulation. 42 U. S. C. § 9659(c). But CERCLA expressly permits the Government to recover "all costs of removal or remedial action," § 9607(a)(4)(A), and it expressly permits the recovery of any "necessary costs of response, incurred by any ... person consistent with the national contingency plan," § 9607(a)(4)(B). CERCLA also provides that "[a]ny person may seek contribution from any other person who is liable or potentially liable" for these response costs. See § 9613(f)(1). Congress thus demonstrated in CERCLA that it knew how to provide for the recovery of cleanup costs, and that the language used to define the remedies under RCRA does not provide that remedy.That RCRA's citizen suit provision was not intended to provide a remedy for past cleanup costs is further apparent from the harm at which it is directed. Section 6972(a)(1)(B) permits a private party to bring suit only upon a showing that the solid or hazardous waste at issue "may present an imminent and substantial endangerment to health or the environment." The meaning of this timing restriction is plain:An endangerment can only be "imminent" if it "threaten[s] to occur immediately," Webster's New International Dictionary of English Language 1245 (2d ed. 1934), and the refer-486ence to waste which "may present" imminent harm quite clearly excludes waste that no longer presents such a danger. As the Ninth Circuit itself intimated in Price v. United States Navy, 39 F.3d 1011, 1019 (1994), this language "implies that there must be a threat which is present now, although the impact of the threat may not be felt until later." It follows that § 6972(a) was designed to provide a remedy that ameliorates present or obviates the risk of future "imminent" harms, not a remedy that compensates for past cleanup efforts. Cf. § 6902(b) (national policy behind RCRA is "to minimize the present and future threat to human health and the environment").Other aspects of RCRA's enforcement scheme strongly support this conclusion. Unlike CERCLA, RCRA contains no statute of limitations, compare § 9613(g)(2) (limitations period in suits under CERCLA § 9607), and it does not require a showing that the response costs being sought are reasonable, compare §§ 9607(a)( 4)(A) and (B) (costs recovered under CERCLA must be "consistent with the national contingency plan"). If Congress had intended § 6972(a) to function as a cost-recovery mechanism, the absence of these provisions would be striking. Moreover, with one limited exception, see Hallstrom v. Tillamook County, 493 U. S. 20, 26-27 (1989) (noting exception to notice requirement "when there is a danger that hazardous waste will be discharged"), a private party may not bring suit under § 6972(a)(1)(B) without first giving 90 days' notice to the Administrator of the EPA, to "the State in which the alleged endangerment may occur," and to potential defendants, see §§ 6972(b)(2)(A)(i)(iii). And no citizen suit can proceed if either the EPA or the State has commenced, and is diligently prosecuting, a separate enforcement action, see §§ 6972(b)(2)(B) and (C). Therefore, if RCRA were designed to compensate private parties for their past cleanup efforts, it would be a wholly irrational mechanism for doing so. Those parties with insubstantial problems, problems that neither the State nor487the Federal Government feel compelled to address, could recover their response costs, whereas those parties whose waste problems were sufficiently severe as to attract the attention of Government officials would be left without a recovery.Though it agrees that KFC's complaint is defective for failing properly to allege an "imminent and substantial endangerment," the Government (as amicus) nonetheless joins KFC in arguing that § 6972(a) does not in all circumstances preclude an award of past cleanup costs. See Brief for United States as Amicus Curiae 22-28. The Government posits a situation in which suit is properly brought while the waste at issue continues to pose an imminent endangerment, and suggests that the plaintiff in such a case could seek equitable restitution of money previously spent on cleanup efforts. Echoing a similar argument made by KFC, see Brief for Respondent 11-19, the Government does not rely on the remedies expressly provided in § 6972(a), but rather cites a line of cases holding that district courts retain inherent authority to award any equitable remedy that is not expressly taken away from them by Congress. See, e. g., Porter v. Warner Holding Co., 328 U. S. 395 (1946); Wyandotte Transp. Co. v. United States, 389 U. S. 191 (1967); Hecht Co. v. Bowles, 321 U. S. 321 (1944).RCRA does not prevent a private party from recovering its cleanup costs under other federal or state laws, see § 6972(f) (preserving remedies under statutory and common law), but the limited remedies described in § 6972(a), along with the stark differences between the language of that section and the cost recovery provisions of CERCLA, amply demonstrate that Congress did not intend for a private citizen to be able to undertake a cleanup and then proceed to recover its costs under RCRA. As we explained in Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 14 (1981), where Congress has provided "elaborate enforcement provisions" for remedying the viola-488tion of a federal statute, as Congress has done with RCRA and CERCLA, "it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under" the statute. "'[I]t 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.'" Id., at 14-15 (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 19 (1979)).Without considering whether a private party could seek to obtain an injunction requiring another party to pay cleanup costs which arise after a RCRA citizen suit has been properly commenced, cf. United States v. Price, 688 F.2d 204, 211-213 (CA3 1982) (requiring funding of a diagnostic study is an appropriate form of relief in a suit brought by the Administrator under § 6973), or otherwise recover cleanup costs paid out after the invocation of RCRA's statutory process, we agree with the Meghrigs that a private party cannot recover the cost of a past cleanup effort under RCRA, and that KFC's complaint is defective for the reasons stated by the District Court. Section 6972(a) does not contemplate the award of past cleanup costs, and § 6972(a)(1)(B) permits a private party to bring suit only upon an allegation that the contaminated site presently poses an "imminent and substantial endangerment to health or the environment," and not upon an allegation that it posed such an endangerment at some time in the past. The judgment of the Ninth Circuit is reversed.It is so ordered

OCTOBER TERM, 1995SyllabusMEGHRIG ET AL. V. KFC WESTERN, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 95-83. Argued January 10, 1996-Decided March 19, 1996Three years after complying with a county order to clean up petroleum contamination discovered on its property, respondent KFC Western, Inc., brought this action under the citizen suit provision of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U. S. C. § 6972(a), to recover its cleanup costs from petitioners, the Meghrigs. KFC claimed, among other things, that the contamination had previously posed an "imminent and substantial endangerment to health or the environment," see § 6972(a)(1)(B), and that the Meghrigs were responsible for "equitable restitution" under § 6972(a) because, as prior owners of the property, they had contributed to the contaminated site. The District Court dismissed the complaint, holding that § 6972(a) does not permit recovery of past cleanup costs and that § 6972(a)(1)(B) does not authorize a cause of action for the remediation of toxic waste that does not pose an "imminent and substantial endangerment" at the time suit is filed. The Ninth Circuit disagreed on both points and reversed.Held: Section 6972 does not authorize a private cause of action to recover the prior cost of cleaning up toxic waste that does not, at the time of suit, continue to pose an endangerment to health or the environment. Pp. 483-488.(a) A private party cannot recover the cost of a past cleanup effort under § 6972(a), which authorizes district courts "to restrain any person [responsible for toxic waste], to order such person to take such other action as may be necessary, or both." (Emphasis added.) Under a plain reading of this remedial scheme, a citizen plaintiff could seek a mandatory injunction that orders a responsible party to "take action" by attending to the cleanup and proper disposal of waste, or a prohibitory injunction that "restrains" a responsible party from further violating RCRA. Neither remedy, however, contemplates the award of past cleanup costs, whether denominated "damages" or "equitable restitution." A comparison with the relief provided in the analogous, but not parallel, provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 demonstrates that Congress knows how to provide for the recovery of past cleanup costs, and that § 6972(a) does not provide that remedy. Pp. 483-485.480Syllabus(b) Section 6972(a)(I)(B)-which permits citizen suits against persons responsible for "waste which may present an imminent and substantial endangerment to health or the environment" (emphasis added)-does not authorize a suit based upon an allegation that the contaminated site posed such an endangerment at some time in the past. This timing restriction's plain meaning demonstrates that an endangerment can only be "imminent" if it threatens to occur immediately, and the reference to waste which "may present" imminent harm quite clearly excludes waste that no longer presents such a danger. This language implies that there must be a threat which is present now, although the impact of the threat may not be felt until later. It follows that § 6972(a) was designed to provide a remedy that ameliorates present or obviates the risk of future "imminent" harms, not a remedy that compensates for past cleanup efforts. Other aspects of RCRA's enforcement scheme strongly support this conclusion, and the existence of such an elaborate scheme refutes the Government's contention that district courts may award past cleanup costs under their inherent equitable remedial authority. Pp. 485-488.(c) This Court does not consider whether a private party could seek to obtain an injunction requiring another party to pay cleanup costs arising after a RCRA citizen suit has been properly commenced. P.488. 49 F.3d 518, reversed.O'CONNOR, J., delivered the opinion for a unanimous Court.John P. Zaimes argued the cause and filed briefs for petitioners.Jeffrey P. Minear argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Schiffer, Deputy Solicitor General Wallace, Anne S. Almy, and John T. Stahr.Daniel Romano argued the cause and filed a brief for respondent. **Briefs of amici curiae urging reversal were filed for the Petroleum Marketers Association of America by Alphonse M. Alfano and Robert S. Bassman; for the Southern California Service Station Association by Dimitri G. Daskalopoulos; and for the Western States Petroleum Association by Donna R. Black.Briefs of amici curiae urging affirmance were filed for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of481Full Text of Opinion

1987_87-16

O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 486 U. S. 480.JUSTICE BRENNAN announced the judgment of the Court and delivered the opinion of the Court as to Parts I and II and an opinion as to Part III in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE KENNEDY join.This case presents the issue whether a State may, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. Page 486 U. S. 469IIn 1985, petitioner, a member of Kentucky's integrated Bar Association, see Ky.Sup.Ct.Rule 3.030 (1988), applied to the Kentucky Attorneys Advertising Commission [Footnote 1] for approval of a letter that he proposed to send "to potential clients who have had a foreclosure suit filed against them." The proposed letter read as follows:"It has come to my attention that your home is being foreclosed on. If this is true, you may be about to lose your home. Federal law may allow you to keep your home by ORDERING your creditor [sic] to STOP and give you more time to pay them.""You may call my office anytime from 8:30 a.m. to 5:00 p.m. for FREE information on how you can keep your home.""Call NOW, don't wait. It may surprise you what I may be able to do for you. Just call and tell me that you got this letter. Remember it is FREE, there is NO charge for calling."The Commission did not find the letter false or misleading. Nevertheless, it declined to approve petitioner's proposal on the ground that a then-existing Kentucky Supreme Court rule prohibited the mailing or delivery of written advertisements "precipitated by a specific event or occurrence involving or relating to the addressee or addressees as distinct Page 486 U. S. 470 from the general public." Ky.Sup.Ct.Rule 3.135(5)(b)(i). [Footnote 2] The Commission registered its view that Rule 3.135(5)(b)(i)'s ban on targeted, direct-mail advertising violated the First Amendment -- specifically the principles enunciated in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985) -- and recommended that the Kentucky Supreme Court amend its rules. See App. to Pet. for Cert. 11a-15a. Pursuing the Commission's suggestion, petitioner petitioned the Committee on Legal Ethics (Ethics Committee) of the Kentucky Bar Association for an advisory opinion as to the Rule's validity. See Ky.Sup.Ct.Rule 3.530; n. 1, supra. Like the Commission, the Ethics Committee, in an opinion formally adopted by the Board of Governors of the Bar Association, did not find the proposed letter false or misleading, but nonetheless upheld Rule 3.135(5)(b)(i) on the ground that it was consistent with Rule 7.3 of the American Bar Association's Model Rules of Professional Conduct (1984). App. to Pet. for Cert. 9a.On review of the Ethics Committee's advisory opinion, the Kentucky Supreme Court felt "compelled by the decision in Zauderer to order [Rule 3.135(5)(b)(i)] deleted," 726 S.W.2d 299, 300 (1987), and replaced it with the ABA's Rule 7.3, which provides in its entirety:"A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, in-person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term 'solicit' includes contact in person, by telephone or Page 486 U. S. 471 telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful."726 S.W.2d at 301 (quoting ABA, Model Rule of Professional Conduct 7.3 (1984)). The court did not specify either the precise infirmity in Rule 3.135(5)(b)(i), or how Rule 7.3 cured it. Rule 7.3, like its predecessor, prohibits targeted, direct-mail solicitation by lawyers for pecuniary gain, without a particularized finding that the solicitation is false or misleading. We granted certiorari to resolve whether such a blanket prohibition is consistent with the First Amendment, made applicable to the States through the Fourteenth Amendment, 484 U.S. 814 (1987), and now reverse. [Footnote 3] Page 486 U. S. 472IILawyer advertising is in the category of constitutionally protected commercial speech. See Bates v. State Bar of Arizona, 433 U. S. 350 (1977). The First Amendment principles governing state regulation of lawyer solicitations for pecuniary gain are by now familiar:"Commercial speech that is not false or deceptive and does not concern unlawful activities . . . may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest."Zauderer, supra, at 471 U. S. 638 (citing Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557, 447 U. S. 566 (1980)). Since state regulation of commercial speech "may extend only as far as the interest it serves," Central Hudson, supra, at 565, state rules that are designed to prevent the "potential for deception and confusion . . . may be no broader than reasonably necessary to prevent the" perceived evil. In re R.M.J., 455 U. S. 191, 455 U. S. 203 (1982).In Zauderer, application of these principles required that we strike an Ohio rule that categorically prohibited solicitation of legal employment for pecuniary gain through advertisements containing information or advice, even if truthful and nondeceptive, regarding a specific legal problem. We distinguished written advertisements containing such information or advice from in-person solicitation by lawyers for profit, which we held in Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), a State may categorically ban. The"unique features of in-person solicitation by lawyers [that] justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain,"we observed, are "not present" in the context of written advertisements. Zauderer, 471 U.S. at 471 U. S. 641-642. Page 486 U. S. 473Our lawyer advertising cases have never distinguished among various modes of written advertising to the general public. See, e.g., Bates, supra, (newspaper advertising); id. at 433 U. S. 372, n. 26 (equating advertising in telephone directory with newspaper advertising); In re R. M. J., supra, (mailed announcement cards treated same as newspaper and telephone directory advertisements). Thus, Ohio could no more prevent Zauderer from mass-mailing to a general population his offer to represent women injured by the Dalkon Shield than it could prohibit his publication of the advertisement in local newspapers. Similarly, if petitioner's letter is neither false nor deceptive, Kentucky could not constitutionally prohibit him from sending at large an identical letter opening with the query, "Is your home being foreclosed on?," rather than his observation to the targeted individuals that "It has come to my attention that your home is being foreclosed on." The drafters of Rule 7.3 apparently appreciated as much, for the Rule exempts from the ban "letters addressed or advertising circulars distributed generally to persons . . . who are so situated that they might in general find such services useful."The court below disapproved petitioner's proposed letter solely because it targeted only persons who were "known to need [the] legal services" offered in his letter, 726 S.W.2d at 301, rather than the broader group of persons "so situated that they might in general find such services useful." Generally, unless the advertiser is inept, the latter group would include members of the former. The only reason to disseminate an advertisement of particular legal services among those persons who are "so situated that they might in general find such services useful" is to reach individuals who actually "need legal services of the kind provided [and advertised] by the lawyer." But the First Amendment does not permit a ban on certain speech merely because it is more efficient; the State may not constitutionally ban a particular letter on the Page 486 U. S. 474 theory that to mail it only to those whom it would most interest is somehow inherently objectionable.The court below did not rely on any such theory. See also Brief for Respondent 37 (conceding that "targeted direct-mail advertising" -- as distinguished from "solicitation" -- "is constitutionally protected") (emphasis in original). Rather, it concluded that the State's blanket ban on all targeted, direct-mail solicitation was permissible because of the "serious potential for abuse inherent in direct solicitation by lawyers of potential clients known to need specific legal services." 726 S.W.2d at 301. By analogy to Ohralik, the court observed:"Such solicitation subjects the prospective client to pressure from a trained lawyer in a direct personal way. It is entirely possible that the potential client may feel overwhelmed by the basic situation which caused the need for the specific legal services, and may have seriously impaired capacity for good judgment, sound reason and a natural protective self-interest. Such a condition is full of the possibility of undue influence, overreaching and intimidation."726 S.W.2d at 301. Of course, a particular potential client will feel equally "overwhelmed" by his legal troubles, and will have the same "impaired capacity for good judgment" regardless of whether a lawyer mails him an untargeted letter or exposes him to a newspaper advertisement -- concededly constitutionally protected activities -- or instead mails a targeted letter. The relevant inquiry is not whether there exist potential clients whose "condition" makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility. Cf. Ohralik, supra, at 436 U. S. 470 (MARSHALL, J., concurring in part and concurring in judgment) ("What is objectionable about Ohralik's behavior here is not so much that he solicited business for himself, but rather the circumstances in which he Page 486 U. S. 475 performed that solicitation and the means by which he accomplished it").Thus, respondent's facile suggestion that this case is merely "Ohralik in writing" misses the mark. Brief for Respondent 10. In assessing the potential for overreaching and undue influence, the mode of communication makes all the difference. Our decision in Ohralik that a State could categorically ban all in-person solicitation turned on two factors. First was our characterization of face-to-face solicitation as "a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud." Zauderer, 471 U.S. at 471 U. S. 641. See Ohralik, 436 U.S. at 436 U. S. 457-458, 436 U. S. 464-465. Second, "unique . . . difficulties," Zauderer, supra, at 471 U. S. 641, would frustrate any attempt at state regulation of in-person solicitation short of an absolute ban because such solicitation is "not visible or otherwise open to public scrutiny." Ohralik, 436 U.S. at 436 U. S. 466. See also ibid. ("[I]n-person solicitation would be virtually immune to effective oversight and regulation by the State or by the legal profession") (footnote omitted). Targeted, direct-mail solicitation is distinguishable from the in-person solicitation in each respect.Like print advertising, petitioner's letter -- and targeted, direct-mail solicitation generally -- "poses much less risk of overreaching or undue influence" than does in-person solicitation, Zauderer, 471 U.S. at 471 U. S. 642. Neither mode of written communication involves "the coercive force of the personal presence of a trained advocate" or the "pressure on the potential client for an immediate yes-or-no answer to the offer of representation." Ibid. Unlike the potential client with a badgering advocate breathing down his neck, the recipient of a letter and the "reader of an advertisement . . . can effectively avoid further bombardment of [his] sensibilities simply by averting [his] eyes,'" Ohralik, supra, at 436 U. S. 465, n. 25 (quoting Cohen v. California, 403 U. S. 15, 403 U. S. 21 (1971)). A letter, like a printed advertisement (but unlike a lawyer), can Page 486 U. S. 476 readily be put in a drawer to be considered later, ignored, or discarded. In short, both types of written solicitation"conve[y] information about legal services [by means] that [are] more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney."Zauderer, supra, at 471 U. S. 642. Nor does a targeted letter invade the recipient's privacy any more than does a substantively identical letter mailed at large. The invasion, if any, occurs when the lawyer discovers the recipient's legal affairs, not when he confronts the recipient with the discovery.Admittedly, a letter that is personalized (not merely targeted) to the recipient presents an increased risk of deception, intentional or inadvertent. It could, in certain circumstances, lead the recipient to overestimate the lawyer's familiarity with the case, or could implicitly suggest that the recipient's legal problem is more dire than it really is. See Brief for ABA as Amicus Curiae 9. Similarly, an inaccurately targeted letter could lead the recipient to believe she has a legal problem that she does not actually have or, worse yet, could offer erroneous legal advice. See, e.g., Leoni v. State Bar of California, 39 Cal. 3d 609, 619-620, 704 P.2d 183, 189 (1985), summarily dism'd, 475 U.S. 1001 (1986).But merely because targeted, direct-mail solicitation presents lawyers with opportunities for isolated abuses or mistakes does not justify a total ban on that mode of protected commercial speech. See In re R.M.J., 455 U.S. at 455 U. S. 203. The State can regulate such abuses and minimize mistakes through far less restrictive and more precise means, the most obvious of which is to require the lawyer to file any solicitation letter with a state agency, id. at 455 U. S. 206, giving the State ample opportunity to supervise mailings and penalize actual abuses. The "regulatory difficulties" that are "unique" to in-person lawyer solicitation, Zauderer, supra, at 471 U. S. 641 -- solicitation that is "not visible or otherwise open to public scrutiny" and for which it is "difficult or impossible to obtain reliable proof of what actually took place," Ohralik, supra, at 436 U. S. 466 -- do not apply to written solicitations. The court below offered Page 486 U. S. 477 no basis for its"belie[f] [that] submission of a blank form letter to the Advertising Commission [does not] provid[e] a suitable protection to the public from overreaching, intimidation or misleading private targeted mail solicitation."726 S.W.2d at 301. Its concerns were presumably those expressed by the ABA House of Delegates in its comment to Rule 7.3:"State lawyer discipline agencies struggle for resources to investigate specific complaints, much less for those necessary to screen lawyers' mail solicitation material. Even if they could examine such materials, agency staff members are unlikely to know anything about the lawyer or about the prospective client's underlying problem. Without such knowledge, they cannot determine whether the lawyer's representations are misleading."ABA, Model Rules of Professional Conduct, pp. 93-94 (1984).The record before us furnishes no evidence that scrutiny of targeted solicitation letters will be appreciably more burdensome or less reliable than scrutiny of advertisements. See Bates, 433 U.S. at 433 U. S. 379; id. at 387 (Burger, C.J., concurring in part and dissenting in part) (objecting to "enormous new regulatory burdens called for by" Bates). As a general matter, evaluating a targeted advertisement does not require specific information about the recipient's identity and legal problems, any more than evaluating a newspaper advertisement requires like information about all readers. If the targeted letter specifies facts that relate to particular recipients (e.g., "It has come to my attention that your home is being foreclosed on"), the reviewing agency has innumerable options to minimize mistakes. It might, for example, require the lawyer to prove the truth of the fact stated (by supplying copies of the court documents or material that led the lawyer to the fact); it could require the lawyer to explain briefly how she discovered the fact and verified its accuracy; or it could require the letter to bear a label identifying it as an advertisement, see id. at 433 U. S. 384 (dictum); In re R. M. J., supra, Page 486 U. S. 478 at 455 U. S. 206, n. 20, or directing the recipient how to report inaccurate or misleading letters. To be sure, a state agency or bar association that reviews solicitation letters might have more work than one that does not. But"[o]ur recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful."Zauderer, supra, at 471 U. S. 646.IIIThe validity of Rule 7.3 does not turn on whether petitioner's letter itself exhibited any of the evils at which Rule 7.3 was directed. See Ohralik, 436 U.S. at 436 U. S. 463-464, 436 U. S. 466. Since, however, the First Amendment overbreadth doctrine does not apply to professional advertising, see Bates, 433 U.S. at 433 U. S. 379-381, we address respondent's contentions that petitioner's letter is particularly overreaching, and therefore unworthy of First Amendment protection. Id. at 433 U. S. 381. In that regard, respondent identifies two features of the letter before us that, in its view, coalesce to convert the proposed letter into "high pressure solicitation, overbearing solicitation," Brief for Respondent 20, which is not protected. First, respondent asserts that the letter's liberal use of underscored, uppercase letters (e.g., "Call NOW, don't wait"; "it is FREE, there is NO charge for calling") "fairly shouts at the recipient . . . that he should employ Shapero." Id. at 19. See also Brief in Opposition 11 ("Letters of solicitation which shout commands to the individual, targeted recipient in words in underscored capitals are of a different order from advertising and are subject to proscription"). Second, respondent objects that the letter contains assertions (e.g., "It may surprise you what I may be able to do for you") that "stat[e] no affirmative or objective fact," but constitute "pure salesman puffery, enticement for the unsophisticated, which commits Shapero to nothing." Brief for Respondent 20. Page 486 U. S. 479The pitch or style of a letter's type and its inclusion of subjective predictions of client satisfaction might catch the recipient's attention more than would a bland statement of purely objective facts in small type. But a truthful and nondeceptive letter, no matter how big its type and how much it speculates, can never "shou[t] at the recipient" or "gras[p] him by the lapels," id. at 19, as can a lawyer engaging in face-to-face solicitation. The letter simply presents no comparable risk of overreaching. And so long as the First Amendment protects the right to solicit legal business, the State may claim no substantial interest in restricting truthful and nondeceptive lawyer solicitations to those least likely to be read by the recipient. Moreover, the First Amendment limits the State's authority to dictate what information an attorney may convey in soliciting legal business."[T]he States may not place an absolute prohibition on certain types of potentially misleading information . . . if the information may also be presented in a way that is not deceptive,"unless the State "assert[s] a substantial interest" that such a restriction would directly advance. In re R.M.J., 455 U.S. at 455 U. S. 203. Nor may a State impose a more particularized restriction without a similar showing. Aside from the interests that we have already rejected, respondent offers none.To be sure, a letter may be misleading if it unduly emphasizes trivial or "relatively uninformative fact[s]," In re R.M.J., supra, at 455 U. S. 205 (lawyer's statement, "in large capital letters, that he was a member of the Bar of the Supreme Court of the United States"), or offers overblown assurances of client satisfaction, cf. In re Von Wiegen, 63 N.Y.2d 163, 179, 470 N.E.2d 838, 847 (1984) (solicitation letter to victims of massive disaster informs them that "it is [the lawyer's] opinion that the liability of the defendants is clear"), cert. denied, 472 U.S. 1007 (1985); Bates, supra, at 433 U. S. 383-384 ("[A]dvertising claims as to the quality of legal services . . . may be so likely to be misleading as to warrant restriction"). Respondent does not argue before us that petitioner's letter was Page 486 U. S. 480 misleading in those respects. Nor does respondent contend that the letter is false or misleading in any other respect. Of course, respondent is free to raise, and the Kentucky courts are free to consider, any such argument on remand.The judgment of the Supreme Court of Kentucky is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtShapero v.Kentucky Bar Assn., 486 U.S. 466 (1988)Shapero v.Kentucky Bar AssociationNo. 87-16Argued March 1, 1988Decided June 13, 1988486 U.S. 466SyllabusPetitioner, a member of the Kentucky Bar, applied to that State's Attorneys Advertising Commission for approval of a letter that he proposed to send "to potential clients who have had a foreclosure suit filed against them," which, inter alia, advised the client that "you may be about to lose your home," that "[f]ederal law may allow you to . . . ORDE[R] your creditor to STOP," that "you may call my office . . . for FREE information," and that "[i]t may surprise you what I may be able to do for you." Although the Commission did not find the letter false or misleading, it declined to approve it on the ground that a then-existing Kentucky Supreme Court Rule prohibited the mailing or delivery of written advertisements "precipitated by a specific event . . . involving or relating to the addressee . . . as distinct from the general public." Nevertheless, the Commission registered its view that the Rule violated the First Amendment under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, and recommended its amendment by the State Supreme Court. Petitioner then sought an advisory opinion as to the Rule's validity from the State Bar Association's Ethics Committee, which upheld the Rule as consistent with Rule 7.3 of the American Bar Association's Model Rules of Professional Conduct. On review of the advisory opinion, the State Supreme Court held that Zauderer compelled the State Rule's deletion, and replaced it with Rule 7.3, which also prohibits targeted, direct-mail solicitation by lawyers for pecuniary gain, without a particularized finding that the solicitation is false or misleading. The court did not specify either the precise infirmity in the State Rule, or how Rule 7.3 cured it.Held: The judgment is reversed, and the case is remanded.726 S.W.2d 299, reversed and remanded.JUSTICE BRENNAN delivered the opinion of the Court as to Parts I and II, concluding that a State may not, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. Such advertising is constitutionally protected commercial speech, which may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. Zauderer, supra. Moreover, this Court's lawyer advertising cases have never distinguished Page 486 U. S. 467 among various modes of written advertising to the general public, as is recognized by Rule 7.3's exemption for advertising"distributed generally to persons not known to need [the particular] legal services . . but who are so situated that they might in general find such services useful."The court below disapproved petitioner's letter solely on the basis of its failure to qualify for this exemption, analogizing to Ohralik v. Ohio State Bar Assn., 436 U. S. 447, for the proposition that targeted, direct-mail solicitation by a trained lawyer to a potential client "overwhelmed" by his legal troubles, and therefore having an "impaired capacity for good judgment," creates a serious potential for undue influence. However, respondent's reliance on Ohralik, which held that a State could categorically ban all in-person solicitation, is misplaced, since the two factors underlying that decision -- the strong possibility of improper lawyer conduct and the improbability of effective regulation -- are much less a risk in the targeted, direct-mail solicitation context. The recipient of such advertising is not faced with the coercive presence of a trained advocate or the pressure for an immediate yes-or-no answer to the representation offer, but can simply put the letter aside to be considered later, ignored, or discarded. Moreover, although a personalized letter does present increased risks of isolated abuses or mistakes, these can be regulated and minimized by requiring the lawyer to file the letter with a state agency having authority to supervise mailings and penalize actual abuses. Scrutiny of targeted solicitation letters will not be appreciably less reliable than scrutiny of other advertisements, since the reviewing agency can require the lawyer to prove or verify any fact stated, or explain how it was discovered, or require that the letter be labeled as an advertisement, or that it tell the reader how to report inaccurate or misleading matters. That an agency reviewing such letters might have more work than one that does not simply does not outweigh the importance of the free flow of commercial information. Pp. 486 U. S. 472-478.JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE KENNEDY, concluded in Part III that, although the validity of Rule 7.3 does not turn on whether petitioner's letter itself exhibited any of the evils at which the Rule was directed, respondent's contention that the letter is particularly overreaching, and therefore unworthy of First Amendment protection, must be addressed, since the Amendment's overbreadth doctrine does not apply to professional advertising. However, although the letter's liberal use of underscored, uppercase letters and its inclusion of subjective predictions of client satisfaction might catch the recipient's attention more than would a bland statement of purely objective facts in small type, the letter presents no risk of overreaching comparable to that of a lawyer engaged in face-to-face solicitation. In light of the First Amendment's protection, a State Page 486 U. S. 468 may claim no substantial interest in restricting truthful and nondeceptive lawyer solicitations to those least likely to be read by the recipient. Moreover, the State may not absolutely ban certain types of potentially misleading information if the information may also be presented in a nondeceptive way, or impose a more particularized restriction unless it asserts, as respondent has not done in this case, a valid substantial interest that such a restriction would directly advance. Although a letter may be so misleading as to warrant restriction if it unduly emphasizes trivial or relatively uninformative facts or offers overblown assurances of client satisfaction, respondent has not argued such defects here. Such arguments may be raised and considered on remand. Pp. 486 U. S. 478-480.BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respects to Parts I and II, in which WHITE, MARSHALL, BLACKMUN, STEVENS, and KENNEDY, JJ., joined, and an opinion with respect to Part III, in which MARSHALL, BLACKMUN, and KENNEDY, JJ., joined. WHITE, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined, post, p. 486 U. S. 480. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 486 U. S. 480.

1984_84-325

JUSTICE BLACKMUN delivered the opinion of the Court.A Massachusetts statute requires that specified minimum mental health care benefits be provided a Massachusetts resident who is insured under a general insurance policy, an accident or sickness insurance policy, or an employee health care plan that covers hospital and surgical expenses. The first question before us in these cases is whether the state statute, as applied to insurance policies purchased by employee health care plans regulated by the federal Employee Retirement Income Security Act of 1974, is preempted by that Act. The second question is whether the state statute, as applied to insurance policies purchased pursuant to negotiated collective bargaining agreements regulated by the National Labor Relations Act, is preempted by the labor Act.IAGeneral health insurance typically is sold as group insurance to an employer or other group. [Footnote 1] Group insurance presently is subject to extensive state regulation, including Page 471 U. S. 728 regulation of the carrier, regulation of the sale and advertising of the insurance, and regulation of the content of the contracts. [Footnote 2] Mandated benefit laws, that require an insurer to provide a certain kind of benefit to cover a specified illness or procedure whenever someone purchases a certain kind of insurance, are a subclass of such content regulation.While mandated benefit statutes are a relatively recent phenomenon, [Footnote 3] statutes regulating the substantive terms of insurance contracts have become commonplace in all 50 States over the last 30 years. [Footnote 4] Perhaps the most familiar are those regulating the content of automobile insurance policies. [Footnote 5] Page 471 U. S. 729The substantive terms of group health insurance contracts, in particular, also have been extensively regulated by the States. For example, the majority of States currently require that coverage for dependents continue beyond any contractually imposed age limitation when the dependent is incapable of self-sustaining employment because of mental or physical handicap; such statutes date back to the early 1960's. [Footnote 6] And over the last 15 years, all 50 States have required that coverage of infants begin at birth, rather than at some time shortly after birth, as had been the prior practice in the unregulated market. [Footnote 7] Many state statutes require that insurers offer on an optional basis particular kinds of coverage to purchasers. [Footnote 8] Others require insurers either to offer or mandate that insurance policies include coverage for services rendered by a particular type of health care provider. [Footnote 9]Mandated benefit statutes, then, are only one variety of a matrix of state laws that regulate the substantive content of health insurance policies to further state health policy. Massachusetts Gen. Laws Ann., ch. 175, § 47B (West Supp.1985), is typical of mandated benefit laws currently in place in the majority of States. [Footnote 10] With respect to a Massachusetts Page 471 U. S. 730 resident, it requires any general health insurance policy that provides hospital and surgical coverage, or any benefit plan that has such coverage, to provide as well a certain minimum of mental health protection. In particular, § 47B requires that a health insurance policy provide 60 days of coverage for confinement in a mental hospital, coverage for confinement in a general hospital equal to that provided by the policy for nonmental illness, and certain minimum outpatient benefits. [Footnote 11] Page 471 U. S. 731Section 47B was designed to address problems encountered in treating mental illness in Massachusetts. The Commonwealth determined that its working people needed to be protected against the high cost of treatment for such illness. It also believed that, without insurance, mentally ill workers were often institutionalized in large state mental hospitals, and that mandatory insurance would lead to a higher incidence of more effective treatment in private community mental health centers. See Massachusetts General Court, Joint Committee on Insurance, Advances in Health Insurance in Massachusetts (1974), reprinted in App. 426, 430-432.In addition, the Commonwealth concluded that the voluntary insurance market was not adequately providing mental health coverage, because of "adverse selection" in mental health insurance: good insurance risks were not purchasing coverage, and this drove up the price of coverage for those who otherwise might purchase mental health insurance. The legislature believed that the public interest required that it correct the insurance market in the Commonwealth by mandating minimum coverage levels, effectively forcing the good-risk individuals to become part of the risk pool, and enabling insurers to price the insurance at an average market, rather than a market retracted due to adverse selection. See Findings of Fact of the Superior Court, App. to Juris.Statement in No. 84-325, pp. 50a-53a. Section 47B, then, was intended to help safeguard the public against the high costs of comprehensive inpatient and outpatient mental health care, reduce nonpsychiatric medical care expenditures for mentally related illness, shift the delivery of treatment from inpatient to outpatient services, and relieve the Commonwealth of some of the financial burden it otherwise would encounter with respect to mental health problems. Ibid. Page 471 U. S. 732It is our task in these cases to decide whether such insurance regulation violates or is inconsistent with federal law.BThe federal Employee Retirement Income Security Act of 1974, 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. (ERISA), comprehensively regulates employee pension and welfare plans. An employee welfare benefit plan or welfare plan is defined as one which provides to employees "medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability [or] death," whether these benefits are provided "through the purchase of insurance or otherwise." § 3(1), 29 U.S.C. § 1002(1). Plans may self-insure or they may purchase insurance for their participants. Plans that purchase insurance -- so-called "insured plans" -- are directly affected by state laws that regulate the insurance industry.ERISA imposes upon pension plans a variety of substantive requirements relating to participation, funding, and vesting. §§ 201-306, 29 U.S.C. §§ 1051-1086. It also establishes various uniform procedural standards concerning reporting, disclosure, and fiduciary responsibility for both pension and welfare plans. §§ 101-111, 401-414, 29 U.S.C. §§ 1021-1031, 1101-1114. It does not regulate the substantive content of welfare benefit plans. See Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 463 U. S. 91 (1983).ERISA thus contains almost no federal regulation of the terms of benefit plans. It does, however, contain a broad preemption provision declaring that the statute shall "supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." § 514(a), 29 U.S.C. § 1144(a). Appellant Metropolitan in No. 84-325 argues that ERISA preempts Massachusetts' mandated benefit law insofar as § 47B restricts the kinds of insurance policies that benefit plans may purchase. Page 471 U. S. 733While § 514(a) of ERISA broadly preempts state laws that relate to an employee benefit plan, that preemption is substantially qualified by an "insurance saving clause," § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A), which broadly states that, with one exception, nothing in ERISA "shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." The specified exception to the saving clause is found in § 514(b)(2)(B), 29 U.S.C. § 1144(b)(2)(B), the so-called "deemer clause," which states that no employee benefit plan, with certain exceptions not relevant here,"shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies."Massachusetts argues that its mandated benefit law, as applied to insurance companies that sell insurance to benefit plans, is a "law which regulates insurance," and therefore is saved from the effect of the general preemption clause of ERISA.Wholly apart from the question whether Massachusetts' mandated benefit law is preempted by ERISA, appellant Travelers in No. 84-356 argues that, as applied to benefit plans negotiated pursuant to collective bargaining agreements, § 47B is preempted by the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq. (NLRA), because it effectively imposes a contract term on the parties that otherwise would be a mandatory subject of collective bargaining. Unlike ERISA, the NLRA contains no statutory provision indicating the extent to which it was intended to preempt state law. Resolution of the NLRA preemption question, therefore, requires us to discern legislative intent from the general purpose of the NLRA, and not from any particular statutory language. Page 471 U. S. 734IIAppellants are Metropolitan Life Insurance Company and Travelers Insurance Company (insurers) who are located in New York and Connecticut, respectively, and who issue group health policies providing hospital and surgical coverage to plans, or to employers or unions that employ or represent employees residing in Massachusetts. Under the terms of § 47B, both appellants are required to provide minimal mental health benefits in policies issued to cover Commonwealth residents.In 1979, the Attorney General of Massachusetts brought suit in Massachusetts Superior Court for declaratory and injunctive relief to enforce § 47B. The Commonwealth asserted that, since January 1, 1976, the effective date of § 47B, the insurers had issued policies to group policyholders situated outside Massachusetts that provided for hospital and surgical coverage for certain residents of the Commonwealth. App. 8-9. It further asserted that those policies failed to provide Massachusetts resident beneficiaries the mental health coverage mandated by § 47B, and that the insurers intended to issue more such policies, believing themselves not bound by § 47B for policies issued outside the Commonwealth. In their answer, the insurers admitted these allegations. [Footnote 12]The complaint further asserted that the insurers had amended a number of policies in effect prior to January 1, 1976, but had failed to include the benefits mandated by § 47B in the amended policies, in violation of the law. App. 9-10. Finally, the Commonwealth asserted that the insurers refused to provide the mandated benefits in part on the ground that they believed ERISA and the NLRA preempted § 47B. App. 10. Though the insurers had not actually refused to provide the mandated benefits in any policy issued after January 1, 1976, within the Commonwealth, the insurers preserved their right to challenge the applicability of § 47B Page 471 U. S. 735 to any policy issued to an ERISA plan within the Commonwealth. [Footnote 13] The Commonwealth accordingly requested broad preliminary and permanent injunctive relief, asking the court to require the insurers to provide the mandated benefits to all covered residents of the Commonwealth subject to the terms of § 47B, regardless of when their policies were issued or whether they were presently receiving such benefits. App. 11-12.The Superior Court issued a preliminary injunction requiring the insurers to provide the coverage mandated by § 47B. App. 57-59. After trial, a different judge issued a permanent injunction to the same effect, see App. to Juris.Statement in No. 84-325, pp. 67a-70a, making extensive findings of fact concerning the cost, nature, purpose, and effect of the mandated benefit law. See id. at 36a-62a. The Supreme Judicial Court of Massachusetts granted the insurers' application for direct appellate review and affirmed the judgment of the Superior Court. Attorney General v. Travelers Ins. Co., 385 Mass. 598, 433 N.E.2d 1223 (1982).Addressing first the ERISA preemption question, the court recognized that § 47B is a law that "relate[s] to' benefit plans," and so would be preempted unless it fell within one of the exceptions to the preemption clause of ERISA. 385 Mass. at 605, 433 N.E.2d at 1227. The court went on to hold, however, that § 47B is a law "which regulates insurance," as understood by the ERISA saving clause, § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A), and therefore is not preempted by ERISA. 385 Mass. at 606-609, 433 N.E.2d at 1228-1230. [Footnote 14] It rejected appellants' claim that Page 471 U. S. 736 the saving clause was designed to save only "traditional" insurance laws, rather than those that are designed to promote public health, finding no such limitation in the statutory language of ERISA. The court nonetheless was wary of a literal reading of the statute, lest the saving clause give the States unintended authority to regulate in areas otherwise governed by ERISA. It therefore understood the saving clause to save only state laws that were unrelated to the substantive provisions of ERISA. Since nothing in ERISA regulates the content of welfare plans, state regulation of insurance that indirectly affects the content of welfare plans is not preempted by ERISA. 385 Mass. at 606-607, 609, 433 N.E.2d at 1228-1229.The court then went on to conclude that the NLRA does not preempt § 47B. Although § 47B regulates health benefits, a subject of mandatory collective bargaining, the NLRA does not preempt all local regulation affecting employment relations. A public health statute, § 47B does not regulate labor-management relations as such, or affect the free play of economic forces between labor and management."It is unlikely that Congress intended, by enacting the NLRA, to bind the hands of State Legislatures with respect to problems such as mental health."385 Mass. at 613, 433 N.E.2d at 1232.Moreover, the court pointed out, Congress has indicated in the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S.C. § 1011 et seq., that federal laws should not be construed to supersede state laws "regulating the business of insurance." § 1012(b). Section 47B operates upon insurance and insurance policies. The McCarran-Ferguson Act Page 471 U. S. 737 contains no limiting definition of the term "business of insurance" that would suggest a narrow reading excluding § 47B from its protection. 385 Mass. at 613-614, 433 N.E.2d at 1232. The court therefore found no preemption under either ERISA or the NLRA.On appeal, this Court, 463 U.S. 1221 (1983), vacated the judgment of the Supreme Judicial Court and remanded the cases for further consideration in light of the intervening decision in Shaw v. Delta Air Lines, Inc., 463 U. S. 85 (1983). Appropriately refocusing on the ERISA preemption provisions that were the subject of that decision, the Supreme Judicial Court, with one justice dissenting, reinstated its former judgment. Attorney General v. Travelers Ins. Co., 391 Mass. 730, 463 N.E.2d 548 (1984). The court reasoned that this Court had not addressed the insurance exception in Shaw, and, as that decision construed none of the exceptions listed in § 514(b), our statement that the exceptions were "narrow" was merely dictum that did not compel the Massachusetts court to change its result. 391 Mass. at 733, 463 N.E.2d at 550. Unlike the exemption from ERISA coverage at issue in Shaw, the exception in § 514(b) is phrased very broadly. Nor was there reason to alter the limiting construction given the saving clause. The Court in Shaw held that ERISA's broad preemption provision was intended to preempt any state law that "relate[d] to" an employee benefit plan, not merely those state laws that directly conflicted with a substantive provision in the federal statute. Though the Court thus had rejected a conflict-based analysis of the broadly phrased preemption clause as being too narrow an interpretation of that provision, it did not follow that the conflict-based limitation on the saving clause imposed by the Supreme Judicial Court similarly should be rejected.The dissenting justice felt that the Shaw Court had made clear that the exemptions and exceptions to ERISA's preemption clause should be read narrowly in order to preserve nationwide uniformity in the administration of welfare plans. Page 471 U. S. 738 Reading the insurance saving clause narrowly, § 47B should not be understood as a statute that regulates insurance. As applied, § 47B concerns health benefits that an employer must provide, and only incidentally regulates insurance. Shaw established that it is "irrelevant whether State law dictating plan benefits conflicts with the substantive policies of ERISA." 391 Mass. at 736, 463 N.E.2d at 552.The insurers once again appealed pursuant to 28 U.S.C. § 1257(2), and we noted probable jurisdiction. 469 U.S. 929 (1984). [Footnote 15]III"In deciding whether a federal law preempts a state statute, our task is to ascertain Congress' intent in enacting the federal statute at issue.""Preemption may be either express or implied, and 'is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.'""Jones v. Rath Packing Co., 430 U. S. 519, 430 U. S. 525 (1977). Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 458 U. S. 152-153 (1982)."Shaw v. Delta Air Lines, Inc., 463 U.S. at 463 U. S. 95. The narrow statutory ERISA question presented is whether Mass.Gen.Laws Ann., ch. 175, § 47B (West Supp.1985), is a law "which regulates insurance" within the meaning of § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A), and so would not be preempted by § 514(a). Page 471 U. S. 739ASection 47B clearly "relate[s] to" welfare plans governed by ERISA, so as to fall within the reach of ERISA's preemption provision, § 514(a). The broad scope of the preemption clause was noted recently in Shaw v. Delta Air Lines, Inc., supra, where we held that the New York Human Rights Law and that State's Disability Benefits Law "relate[d] to" welfare plans governed by ERISA. The phrase "relate to" was given its broad common-sense meaning, such that a state law "relate[s] to" a benefit plan "in the normal sense of the phrase, if it has a connection with or reference to such a plan." 463 U.S. at 463 U. S. 97. The preemption provision was intended to displace all state laws that fall within its sphere, even including state laws that are consistent with ERISA's substantive requirements. Id. at 463 U. S. 98-99. "[E]ven indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern." Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 525 (1981).Though § 47B is not denominated a benefit plan law, it bears indirectly but substantially on all insured benefit plans, for it requires them to purchase the mental health benefits specified in the statute when they purchase a certain kind of common insurance policy. The Commonwealth does not argue that § 47B, as applied to policies purchased by benefit plans, does not relate to those plans, and we agree with the Supreme Judicial Court that the mandated benefit law, as applied, relates to ERISA plans, and thus is covered by ERISA's broad preemption provision set forth in § 514(a).BNonetheless, the sphere in which § 514(a) operates was explicitly limited by § 514(b)(2). The insurance saving clause preserves any state law "which regulates insurance, banking, or securities." The two preemption sections, while clear enough on their faces, perhaps are not a model of legislative drafting, for while the general preemption clause broadly Page 471 U. S. 740 preempts state law, the saving clause appears broadly to preserve the States' lawmaking power over much of the same regulation. While Congress occasionally decides to return to the States what it has previously taken away, it does not normally do both at the same time. [Footnote 16]Fully aware of this statutory complexity, we still have no choice but to"begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose."Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U. S. 189, 469 U. S. 194 (1985). We also must presume that Congress did not intend to preempt areas of traditional state regulation. See Jones v. Rath Packing Co., 430 U. S. 519, 430 U. S. 525 (1977).To state the obvious, § 47B regulates the terms of certain insurance contracts, and so seems to be saved from preemption by the saving clause as a law "which regulates insurance." This common-sense view of the matter, moreover, is reinforced by the language of the subsequent subsection of ERISA, the "deemer clause," which states that an employee benefit plan shall not be deemed to be an insurance company"for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, Page 471 U. S. 741 or investment companies."§ 514(b)(2)(B), 29 U.S.C. § 1144(b)(2)(B) (emphasis added). By exempting from the saving clause laws regulating insurance contracts that apply directly to benefit plans, the deemer clause makes explicit Congress' intention to include laws that regulate insurance contracts within the scope of the insurance laws preserved by the saving clause. Unless Congress intended to include laws regulating insurance contracts within the scope of the insurance saving clause, it would have been unnecessary for the deemer clause explicitly to exempt such laws from the saving clause when they are applied directly to benefit plans.The insurers nonetheless argue that § 47B is in reality a health law that merely operates on insurance contracts to accomplish its end, and that it is not the kind of traditional insurance law intended to be saved by § 514(b)(2)(A). We find this argument unpersuasive.Initially, nothing in § 514(b)(2)(A), or in the "deemer clause" which modifies it, purports to distinguish between traditional and innovative insurance laws. The presumption is against preemption, and we are not inclined to read limitations into federal statutes in order to enlarge their preemptive scope. Further, there is no indication in the legislative history that Congress had such a distinction in mind.Appellants assert that state laws that directly regulate the insurer, and laws that regulate such matters as the way in which insurance may be sold, are traditional laws subject to the clause, while laws that regulate the substantive terms of insurance contracts are recent innovations more properly seen as health laws, rather than as insurance laws, which § 514(b)(2)(A) does not save. This distinction reads the saving clause out of ERISA entirely, because laws that regulate only the insurer, or the way in which it may sell insurance, do not "relate to" benefit plans in the first instance. Because they would not be preempted by § 514(a), they do not need to be "saved" by § 514(b)(2)(A). There is no indication that Congress could have intended the saving clause to operate Page 471 U. S. 742 only to guard against too expansive readings of the general preemption clause that might have included laws wholly unrelated to plans. [Footnote 17] Appellants' construction, in our view, violates the plain meaning of the statutory language and renders redundant both the saving clause it is construing, as well as the deemer clause which it precedes, and accordingly has little to recommend it. [Footnote 18]Moreover, it is both historically and conceptually inaccurate to assert that mandated benefit laws are not traditional insurance laws. As we have indicated, state laws regulating the substantive terms of insurance contracts were commonplace well before the mid-70's, when Congress considered ERISA. [Footnote 19] The case law concerning the meaning of the phrase "business of insurance" in the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq., also strongly supports the conclusion that regulation regarding the substantive terms of Page 471 U. S. 743 insurance contracts falls squarely within the saving clause as laws "which regulate insurance."Cases interpreting the scope of the McCarran-Ferguson Act have identified three criteria relevant to determining whether a particular practice falls within that Act's reference to the "business of insurance":"first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry."Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119, 458 U. S. 129 (1982) (emphasis in original). See also Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205 (1979). Application of these principles suggests that mandated benefit laws are state regulation of the "business of insurance."Section 47B obviously regulates the spreading of risk: as we have indicated, it was intended to effectuate the legislative judgment that the risk of mental health care should be shared. See Findings of Fact of the Superior Court, App. to Juris.Statement in No. 84-325, pp. 50a-51a. It is also evident that mandated benefit laws directly regulate an integral part of the relationship between the insurer and the policyholder by limiting the type of insurance that an insurer may sell to the policyholder. Finally, the third criterion is present here, for mandated benefit statutes impose requirements only on insurers, with the intent of affecting the relationship between the insurer and the policyholder. Section 47B, then, is the very kind of regulation that this Court has identified as a law that relates to the regulation of the business of insurance as defined in the McCarran-Ferguson Act: [Footnote 20]"Congress was concerned [in the McCarran-Ferguson Act] with the type of state regulation that centers Page 471 U. S. 744 around the contract of insurance. . . . The relationship between insurer and insured, the type of policy which could be issued, its reliability, its interpretation, and enforcement -- these were the core of the 'business of insurance.' [T]he focus [of the statutory term] was on the relationship between the insurance company and the policyholder. Statutes aimed at protecting or regulating this relationship, directly or indirectly, are laws regulating the 'business of insurance.'"SEC v. National Securities, Inc., 393 U. S. 453, 393 U. S. 460 (1969) (emphasis added).Nor is there any contrary case authority suggesting that laws regulating the terms of insurance contracts should not be understood as laws that regulate insurance. In short, the plain language of the saving clause, its relationship to the other ERISA preemption provisions, and the traditional understanding of insurance regulation, all lead us to the conclusion that mandated benefit laws such as § 47B are saved from preemption by the operation of the saving clause. [Footnote 21] Page 471 U. S. 745Nothing in the legislative history of ERISA suggests a different result. There is no discussion in that history of the relationship between the general preemption clause and the saving clause, and indeed very little discussion of the saving clause at all. [Footnote 22] In the early versions of ERISA, the general preemption clause preempted only those state laws dealing with subjects regulated by ERISA. The clause was significantly broadened at the last minute, well after the saving clause was in its present form, to include all state laws that relate to benefit plans. The change was made with little explanation by the Conference Committee, and there is no indication in the legislative history that Congress was aware of the new prominence given the saving clause in light of the rewritten preemption clause, or was aware that the saving clause was in conflict with the general preemption provision. [Footnote 23] There is a complete absence of evidence that Congress Page 471 U. S. 746 intended the narrow reading of the saving clause suggested by appellants here. Appellants do call to our attention a few passing references in the record of the floor debate to the "narrow" exceptions to the preemption clause, [Footnote 24] but these are far too frail a support on which to rest appellants' rather unnatural reading of the clause.We therefore decline to impose any limitation on the saving clause beyond those Congress imposed in the clause itself and in the "deemer clause" which modifies it. If a state law "regulates insurance," as mandated benefit laws do, it is not preempted. Nothing in the language, structure, or legislative history of the Act supports a more narrow reading of the clause, whether it be the Supreme Judicial Court's attempt to save only state regulations unrelated to the substantive provisions Page 471 U. S. 747 of ERISA, or the insurers' more speculative attempt to read the saving clause out of the statute.We are aware that our decision results in a distinction between insured and uninsured plans, leaving the former open to indirect regulation while the latter are not. By so doing we merely give life to a distinction created by Congress in the "deemer clause," a distinction Congress is aware of and one it has chosen not to alter. [Footnote 25] We also are aware that appellants' construction of the statute would eliminate some of the disuniformities currently facing national plans that enter into local markets to purchase insurance. Such disuniformities, however, are the inevitable result of the congressional decision to "save" local insurance regulation. Arguments as to the wisdom of these policy choices must be directed at Congress.IVAUnlike ERISA, the NLRA contains no statutory preemption provision. Still, as in any preemption analysis, "[t]he purpose of Congress is the ultimate touchstone.'" Malone v. White Motor Corp., 435 U. S. 497, 435 U. S. 504 (1978), quoting Retail Clerks v. Schermerhorn, 375 U. S. 96, 375 U. S. 103 (1963). Where the preemptive effect of federal enactments is not explicit,"courts sustain a local regulation 'unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances Page 471 U. S. 748 that Congress sought to occupy the field to the exclusion of the States.'"Allis-Chalmers Corp. v. Lueck, ante at 471 U. S. 209, quoting Malone v. White Motor Corp., 435 U.S. at 435 U. S. 504.Appellants contend first that, because mandated benefit laws require benefit plans whose terms are arrived at through collective bargaining to purchase certain benefits the parties may not have wished to purchase, such laws in effect mandate terms of collective bargaining agreements. The Supreme Judicial Court of Massachusetts correctly found that,"[b]ecause a plan that purchases insurance has no choice but to provide mental health care benefits, the insurance provisions of § 47B effectively control the content of insured welfare benefit plans."385 Mass. at 605, 433 N.E.2d at 1227. More precisely, faced with § 47B, parties to a collective bargaining agreement providing for health insurance are forced to make a choice: either they must purchase the mandated benefit, decide not to provide health coverage at all, or decide to become self-insured, assuming they are in a financial position to make that choice.The question then becomes whether this kind of interference with collective bargaining is forbidden by federal law. Appellants argue that, because Congress intended to leave the choice of terms in collective bargaining agreements to the free play of economic forces, not subject either to state law or to the control of the National Labor Relations Board (NLRB), mandated benefit laws should be preempted by the NLRA.The Court has articulated two distinct NLRA preemption principles. The so-called Garmon rule, see San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), protects the primary jurisdiction of the NLRB to determine in the first instance what kind of conduct is either prohibited or protected by the NLRA. [Footnote 26] There is no claim here that Page 471 U. S. 749 Massachusetts has sought to regulate or prohibit any conduct subject to the regulatory jurisdiction of the NLRB, since the Act is silent as to the substantive provisions of welfare benefit plans.A second preemption doctrine protects against state interference with policies implicated by the structure of the Act itself, by preempting state law and state causes of action concerning conduct that Congress intended to be unregulated. The doctrine was designed, at least initially, to govern preemption questions that arose concerning activity that was neither arguably protected against employer interference by §§ 7 and 8(a)(1) of the NLRA nor arguably prohibited as an unfair labor practice by § 8(b) of that Act. 29 U.S.C. §§ 157, 158(a)(1) and (b). Such action falls outside the reach of Garmon preemption. See New York Telephone Co. v. New York Labor Dept., 440 U. S. 519, 440 U. S. 529-531 (1979) (plurality opinion). [Footnote 27] Page 471 U. S. 750In Teamsters v. Morton, 377 U. S. 252 (1964), the Court struck down an Ohio labor law that prohibited a type of secondary boycott neither prohibited nor protected under the NLRA. The Court ruled that, if state law were allowed to deprive the union of a self-help weapon permitted under federal law,"the inevitable result would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy."Id. at 377 U. S. 260. Similarly, in Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S. 132 (1976), the Court ruled that a State may not penalize a concerted refusal to work overtime that was neither prohibited nor protected under the NLRA, for "Congress intended that the conduct involved be unregulated because left to be controlled by the free play of economic forces.'" Id. at 427 U. S. 140, quoting NLRB v. Nash-Finch Co., 404 U. S. 138, 404 U. S. 144 (1971).More recently, a divided Court struggled with a feature of New York's unemployment insurance law that provided certain unemployment insurance payments to striking workers. New York Telephone Co. v. New York Labor Dept., supra. As in Machinists and Morton, the state law "altered the economic balance between labor and management." 440 U.S. at 440 U. S. 532 (plurality opinion). A majority of the Justices nonetheless found the state law not preempted, on the ground that the legislative history of the Social Security Act of 1935, along with other federal legislation, suggested that Congress had decided to permit a State to pay unemployment benefits to strikers. [Footnote 28] Page 471 U. S. 751These cases rely on the understanding that in providing in the NLRA a framework for self-organization and collective bargaining, Congress determined both how much the conduct of unions and employers should be regulated and how much it should be left unregulated:"The States have no more authority than the Board to upset the balance that Congress has struck between labor and management in the collective bargaining relationship.""For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits."New York Telephone Co. v. New York Labor Dept., 440 U.S. at 440 U. S. 554 (dissenting opinion), quoting Garner v. Teamsters, 346 U. S. 485, 346 U. S. 500 (1953). All parties correctly understand this case to involve Machinists preemption.BHere, however, appellants do not suggest that § 47B alters the balance of power between the parties to the labor contract. Instead, appellants argue that not only did Congress establish a balance of bargaining power between labor and management in the Act, but it also intended to prevent the States from establishing minimum employment standards that labor and management would otherwise have been required to negotiate from their federally protected bargaining positions, and would otherwise have been permitted to set at a lower level than that mandated by state law. Appellants assert that such state regulation is permissible only when Congress has authorized its enactment. Because welfare benefits are a mandatory subject of bargaining under the Page 471 U. S. 752 labor law, see Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 404 U. S. 159, and n. 1 (1971), and because Congress has never given States the authority to enact health regulations that affect the terms of bargaining agreements, appellants urge that the NLRA preempts any state attempt to impose minimum-benefit terms on the parties. [Footnote 29]Appellants assume that Congress' ultimate concern in the NLRA was in leaving the parties free to reach agreement about contract terms. The framework established in the NLRA was merely a means to allow the parties to reach such agreement fairly. A law that interferes with the end result of bargaining is, therefore, even worse than a law that interferes with the bargaining process. Thus, it is argued, this case is a fortiori to cases like Morton, Machinists, and New York Telephone.The question has been before the Court in the past, see Algoma Plywood Co. v. Wisconsin Board, 336 U. S. 301, 336 U. S. 312 (1949), and there is a surface plausibility to appellants' argument, which finds support in dicta in some prior Court decisions. Page 471 U. S. 753 See Teamster v. Oliver, 358 U. S. 283, 358 U. S. 295-296 (1959); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. at 451 U. S. 525-526. Upon close analysis, however, we find that Morton, Machinists, and New York Telephone all rest on a sound understanding of the purpose and operation of the Act that is incompatible with appellants' position here.CCongress apparently did not consider the question whether state laws of general application affecting terms of collective bargaining agreements subject to mandatory bargaining were to be preempted. [Footnote 30] That being so, "the Court must construe the Act and determine its impact on state law in light of the wider contours of federal labor policy." Belknap, Inc. v. Hale, 463 U. S. 491, 463 U. S. 520, n. 4 (1983) (opinion concurring in judgment).The NLRA is concerned primarily with establishing an equitable process for determining terms and conditions of employment, and not with particular substantive terms of the bargain that is struck when the parties are negotiating from relatively equal positions. See Cox, Recent Developments in Federal Labor Law Preemption, 41 Ohio St.L.J. 277, 297 (1980). The NLRA's declared purpose is to remedy"[t]he inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association."§ 1, 29 U.S.C. § 151. The same section notes the desirability of "restoring Page 471 U. S. 754 equality of bargaining power," among other ways,"by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection."One of the ultimate goals of the Act was the resolution of the problem of "depress[ed] wage rates and the purchasing power of wage earners in industry," 29 U.S.C. § 151, and "the widening gap between wages and profits," 79 Cong.Rec. 2371 (1935) (remarks of Sen. Wagner), thought to be the cause of economic decline and depression. [Footnote 31] Congress hoped to accomplish this by establishing procedures for more equitable private bargaining.The evil Congress was addressing thus was entirely unrelated to local or federal regulation establishing minimum terms of employment. Neither inequality of bargaining power nor the resultant depressed wage rates were thought to result from the choice between having terms of employment set by public law or having them set by private agreement. No incompatibility exists, therefore, between federal rules designed to restore the equality of bargaining power and state or federal legislation that imposes minimal substantive requirements on contract terms negotiated between parties to labor agreements, at least so long as the purpose of Page 471 U. S. 755 the state legislation is not incompatible with these general goals of the NLRA.Accordingly, it never has been argued successfully that minimal labor standards imposed by other federal laws were not to apply to unionized employers and employees. See, e.g., Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728, 450 U. S. 737, 450 U. S. 739 (1981). Cf. Alexander v. Gardner-Denver Co., 415 U. S. 36, 416 U. S. 51 (1974). Nor has Congress ever seen fit to exclude unionized workers and employers from laws establishing federal minimal employment standards. We see no reason to believe that for this purpose Congress intended state minimum labor standards to be treated differently from minimum federal standards.Minimum state labor standards affect union and nonunion employees equally, and neither encourage nor discourage the collective bargaining processes that are the subject of the NLRA. Nor do they have any but the most indirect effect on the right of self-organization established in the Act. Unlike the NLRA, mandated benefit laws are not laws designed to encourage or discourage employees in the promotion of their interests collectively; rather, they are in part "designed to give specific minimum protections to individual workers and to ensure that each employee covered by the Act would receive" the mandated health insurance coverage. Barrentine, 450 U.S. at 450 U. S. 739 (emphasis in original). Nor do these laws even inadvertently affect these interests implicated in the NLRA. Rather, they are minimum standards"independent of the collective bargaining process [that] devolve on [employees] as individual workers, not as members of a collective organization."Id. at 450 U. S. 745.It would further few of the purposes of the Act to allow unions and employers to bargain for terms of employment that state law forbids employers to establish unilaterally."Such a rule of law would delegate to unions and unionized employers the power to exempt themselves from whatever state labor standards they disfavored."Allis-Chalmers Page 471 U. S. 756 Corp. v. Lueck, ante at 471 U. S. 212. It would turn the policy that animated the Wagner Act on its head to understand it to have penalized workers who have chosen to join a union by preventing them from benefiting from state labor regulations imposing minimal standards on nonunion employers.DMost significantly, there is no suggestion in the legislative history of the Act that Congress intended to disturb the myriad state laws then in existence that set minimum labor standards, but were unrelated in any way to the processes of bargaining or self-organization. To the contrary, we believe that Congress developed the framework for self-organization and collective bargaining of the NLRA within the larger body of state law promoting public health and safety. The States traditionally have had great latitude under their police powers to legislate as "to the protection of the lives, limbs, health, comfort, and quiet of all persons.'" Slaughter-House Cases, 16 Wall. 36, 83 U. S. 62 (1873), quoting Thorpe v. Rutland & Burlington R. Co, 27 Vt. 140, 149 (1855)."States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State. Child labor laws, minimum and other wage laws, laws affecting occupational health and safety . . . are only a few examples."De Canas v. Bica, 424 U. S. 351, 424 U. S. 356 (1976). State laws requiring that employers contribute to unemployment and workmen's compensation funds, laws prescribing mandatory state holidays, and those dictating payment to employees for time spent at the polls or on jury duty all have withstood scrutiny. See, e.g., Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421 (1952).Federal labor law in this sense is interstitial, supplementing state law where compatible and supplanting it only when it prevents the accomplishment of the purposes of the federal Act. Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67, n. 20 (1941); Electrical Workers v. Wisconsin Employment Relations Page 471 U. S. 757 Bd., 315 U. S. 740, 315 U. S. 749-751 (1942); Malone v. White Motor Corp., 435 U.S. at 435 U. S. 504. Thus, the Court has recognized that it"cannot declare preempted all local regulation that touches or concerns in any way the complex interrelationships between employees, employers, and unions; obviously, much of this is left to the States."Motor Coach Employees v. Lockridge, 403 U. S. 274, 403 U. S. 289 (1971). When a state law establishes a minimal employment standard not inconsistent with the general legislative goals of the NLRA, it conflicts with none of the purposes of the Act."A holding that the States were precluded from acting would remove the backdrop of state law that provided the basis of congressional action . . . , and would thereby artificially create a no-law area."Taggart v. Wenacker's, Inc., 397 U. S. 223, 397 U. S. 228 (1970) (concurring opinion) (emphasis in original).Thus, in Malone v. White Motor Corp., supra, the Court rejected a similar challenge to a pre-ERISA state pension Act which established minimum funding and vesting levels for employee pension plans. The Court found the law not preempted by the NLRA, in part for reasons relevant here:"There is little doubt that, under the federal statutes governing labor-management relations, an employer must bargain about wages, hours, and working conditions, and that pension benefits are proper subjects of compulsory bargaining. But there is nothing in the NLRA . . . which expressly forecloses all state regulatory power with respect to those issues, such as pension plans, that may be the subject of collective bargaining."435 U.S. at 435 U. S. 504-505. [Footnote 32] Page 471 U. S. 758 Massachusetts' mandated benefit law is an insurance regulation designed to implement the Commonwealth's policy on mental health care, and as such is a valid and unexceptional exercise of the Commonwealth's police power. It was designed in part to ensure that the less wealthy residents of the Commonwealth would be provided adequate mental health treatment should they require it. Though § 47B, like many laws affecting terms of employment, potentially limits an employee's right to choose one thing by requiring that he be provided with something else, it does not limit the rights of self-organization or collective bargaining protected by the NLRA, and is not preempted by that Act.VWe hold that Massachusetts' mandated benefit law is a "law which regulates insurance," and so is not preempted by ERISA as it applies to insurance contracts purchased for plans subject to ERISA. We further hold that the mandated benefit law as applied to a plan negotiated pursuant to a collective bargaining agreement subject to the NLRA is not preempted by federal labor law.The judgment of the Supreme Judicial Court of Massachusetts is therefore affirmed.It is so ordered

U.S. Supreme CourtMetropolitan Life v. Massachusetts, 471 U.S. 724 (1985)Metropolitan Life Insurance Co. v. MassachusettsNo. 84-325Argued February 26, 1985Decided June 3, 1985*471 U.S. 724SyllabusA Massachusetts statute (§ 47B) requires that certain minimum mental health care benefits be provided a Massachusetts resident who is insured under a general health insurance policy or an employee health care plan that covers hospital and surgical expenses. Appellant insurer in No. 84-325 contends that § 47B, as applied to insurance policies purchased by employee health care plans regulated by the federal Employee Retirement Income Security Act of 1974 (ERISA), is preempted by that Act. Section 514(a) of ERISA provides that the statute shall "supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." But § 514(b)(2)(A) provides that, with one exception, nothing in ERISA "shall be construed to exempt or relieve any person from any law of any State which regulates insurance." The one exception is found in § 514(b)(2)(B), which states that no employee benefit plan"shall be deemed to be an insurance company or other insurer . . . or to be engaged in the business of insurance . . . for purposes of any law of any State purporting to regulate insurance companies [or] insurance contracts."Appellant insurer in No. 84-356 contends that § 47B, as applied to insurance policies purchased pursuant to collective bargaining agreements regulated by the National Labor Relations Act (NLRA), is preempted by that Act, because it effectively imposes a contract term on the parties that otherwise would be a mandatory subject of collective bargaining. Massachusetts brought an action in Massachusetts Superior Court to enforce § 47B against appellant insurers, and that court issued an injunction requiring the insurers to provide the coverage mandated by § 47B. The Massachusetts Supreme Judicial Court affirmed, finding no preemption under either ERISA or the NLRA.Held:1. Section 47B, as applied, is a law "which regulates insurance" within the meaning of § 514(b)(2)(A), and therefore is not preempted by Page 471 U. S. 725 § 514(a) as it applies to insurance contracts purchased for plans subject to ERISA. Section 514(b)(2)(A)'s plain language, its relationship to the other ERISA preemption provisions, and the traditional understanding of insurance regulations, all lead to the conclusion that mandated benefit laws such as § 47B are saved from preemption by the operation of § 514(b)(2)(A). Nothing in ERISA's legislative history suggests a different result. Pp. 471 U. S. 739-747.2. Nor is § 47B, as applied to a plan negotiated pursuant to a collective bargaining agreement subject to the NLRA, preempted by the NLRA. Pp. 471 U. S. 747-758.(a) The NLRA preemption involved here is the one that protects against state interference with policies implicated by the structure of the NLRA itself, by preempting state law and state causes of action concerning conduct that Congress intended to be unregulated. Pp. 471 U. S. 747-751.(b) Such preemption rests on a sound understanding of the NLRA's purpose and operation that is incompatible with the view that the NLRA preempts any state attempt to impose minimum benefit terms on the parties to a collective bargaining agreement. Pp. 471 U. S. 751-753.(c) Minimum state labor standards affect union and nonunion employees equally, and neither encourage nor discourage the collective bargaining processes that are the subject of the NLRA. Nor do they have any but the most indirect effect on the right of self-organization established in the NLRA. Unlike the NLRA, mandated benefit laws such as § 47B are not designed to encourage or discourage employees in the promotion of their interests collectively; rather, they are in part designed to give minimum protections to individual employees and to ensure that each employee covered by the NLRA receives mandated health insurance coverage. These laws are minimum standards independent of the collective bargaining process. Pp. 471 U. S. 753-756.(d) There is no suggestion in the NLRA's legislative history that Congress intended to disturb the state laws that set minimum labor standards but were unrelated to the collective bargaining or self-organization processes. To the contrary, Congress in the NLRA developed the framework for self-organization and collective bargaining within the larger body of state law promoting public health and safety. When a state law establishes a minimal employment standard not inconsistent with the NLRA's general goals, it conflicts with none of the NLRA's purposes. Section 47B is an insurance regulation designed to implement the Commonwealth's policy on mental health care, and as such is a valid and unexceptional exercise of the Commonwealth's police power. Though § 47B potentially limits any employee's right to choose one thing by requiring that he be provided with something else, it does Page 471 U. S. 726 not limit the right of self-organization or collective bargaining protected by the NLRA. Pp. 471 U. S. 756-758.391 Mass. 730, 46:3 N.E.2d 548, affirmed.BLACKMUN, 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 cases. Page 471 U. S. 727

1991_91-860

Solicitor General Starr argued the cause for appellants.With him on the briefs were Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Edwin S. Kneedler, Michael Jay Singer, and Mark B. Stern.Marc Racicot, Attorney General of Montana, argued the cause for appellees. With him on the brief were Clay R. Smith, Solicitor, and Elizabeth S. Baker, Assistant Attorney General. *JUSTICE STEVENS delivered the opinion of the Court. Article I, § 2, of the Constitution requires apportionment of Representatives among the several States "according to their respective Numbers." 1 An Act of Congress passed in 1941 provides that after each decennial census "the method known as the method of equal proportions" shall be used to determine the number of Representatives to which each State is entitled.2 In this case a three-judge District Court* Kenneth O. Eikenberry, Attorney General of Washington, James M.Johnson, Senior Assistant Attorney General, and Carole A. Ressler, Assistant Attorney General, filed a brief for the State of Washington as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the Commonwealth of Massachusetts by Scott Harshbarger, Attorney General, Dwight Golann and Steve Berenson, Assistant Attorneys General, and John P. Driscoll, Jr., Edward P. Leibensperger, and Neil P. Motenko, Special Assistant Attorneys General; and for the Crow Tribe of Indians et al. by Dale T. White, Jeanne S. Whiteing, and Daniel F. Decker.1 Article I, § 2, originally provided that "Representatives ... shall be apportioned among the several States ... according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."Section 2 of the Fourteenth Amendment modified this provision by establishing that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."255 Stat. 761-762; 2 U. S. C. §2a(a).445held that statute unconstitutional because it found that the method of equal proportions resulted in an unjustified deviation from the ideal of equal representation.3 The Government's appeal from that holding requires us to consider the standard that governs the apportionment of Representatives among the several States. In view of the importance of the issue and its significance in this year's congressional and Presidential elections, we noted probable jurisdiction and ordered expedited briefing and argument. 502 U. S. 1012 (1991). We now reverse.IThe 1990 census revealed that the population of certain States, particularly California, Florida, and Texas, had increased more rapidly than the national average. The application of the method of equal proportions to the 1990 census caused 8 States to gain a total of 19 additional seats in the House of Representatives 4 and 13 States to lose an equal number.5 Montana was one of those States. Its loss of one seat cut its delegation in half and precipitated this litigation.According to the 1990 census, the population of the 50 States that elect the members of the House of Representatives is 249,022,783.6 The average size of the 435 congressional districts is 572,466. Montana's population of 803,655 forms a single congressional district that is 231,189 persons larger than the ideal congressional district. If it had retained its two districts, each would have been 170,638 persons smaller than the ideal district. In terms of absolute3775 F. Supp. 1358, 1366 (Mont. 1991).4 Three States, California, Florida, and Texas, accounted for 14 of those gains; five States, Arizona, Georgia, North Carolina, Virginia, and Washington, each gained one seat. 2 App. 20.5 New York lost three seats; Illinois, Michigan, Ohio, and Pennsylvania each lost two seats; and Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Montana, New Jersey, and West Virginia each lost one seat. Ibid. 6See ibid.446difference, each of the two districts would have been closer to ideal size than the single congressional district.The State of Montana, its Governor, Attorney General, and Secretary of State,7 and the State's two Senators and Representatives (hereinafter collectively referred to as Montana) filed suit against appropriate federal defendants (the Government) in the United States District Court for the District of Montana, asserting that Montana was entitled to retain its two seats. They alleged that the existing apportionment method violates Article I, § 2, of the Constitution because it "does not achieve the greatest possible equality in the number of individuals per representative"8 and also violates Article I, § 2, and Article I, § 7, because reapportionment is effected "through application of a mathematical formula by the Department of Commerce and the automatic transmittal of the results to the states" 9 rather than by legislation on which Members of Congress vote in the normal manner. A threejudge District Court, convened pursuant to 28 U. S. C. § 2284, granted Montana's motion for summary judgment on the first claim. 10The majority of the three-judge District Court decided that the principle of equal representation for equal numbers of people that was applied to intrastate districting in Wesberry v. Sanders, 376 U. S. 1 (1964), should also be applied to the apportionment of seats among the States. Under that standard the only population variances that are acceptable are those that "are unavoidable despite a goodfaith effort to achieve absolute equality, or for which justification is shown," Kirkpatrick v. Preisler, 394 U. S. 526, 531 (1969). The District Court held that the variance between7 The three state officials brought suit on behalf of all voters in Montana. 8 Complaint' 19.9Id., n 28-29.10 Having granted summary judgment on the first claim, the District Court found it unnecessary to reach the merits of the claim relating to the automatic method of apportionment. 775 F. Supp., at 1366.447the population of Montana's single district and the ideal district could not be justified under that standard. The majority refused to accord deference to the congressional decision to adopt the method of equal proportions in 1941 because that decision was made without the benefit of this Court's later jurisprudence adopting the "one-person, one-vote" rule. Accordingly, the District Court entered a judgment declaring the statute void and enjoining the Government from effecting any reapportionment of the House of Representatives pursuant to the method of equal proportions.llCircuit Judge O'Scannlain dissented. After noting that Congress has used four different apportionment formulas during the country's history, and that it is not possible to create 435 districts of equal size when each district must be located entirely within a single State, he concluded that the goal of any apportionment formula must be a "'practical approximation'" to a population-based allocation.12 He analyzed the two formulae proposed by Montana and concluded that the State had failed to demonstrate that either was better than the one that had been chosen by Congress.13IIThe general admonition in Article I, § 2, that Representatives shall be apportioned among the several States "according to their respective Numbers" is constrained by three requirements. The number of Representatives shall not ex-11 Ibid.12Id., at 1369 (quoting 2 J. Story, Commentaries on the Constitution of the United States § 676 (1833)).13 Montana alleged that the "method of the harmonic mean" or the "method of smallest divisors" would yield a fairer result. Subsequent to the decision below, a District Court in Massachusetts rejected a challenge to Congress' adoption of the method of equal proportions. In that litigation, Massachusetts plaintiffs asserted that the superiority of another method, that of "major fractions," demonstrated that the method of equal proportions was unconstitutional. Massachusetts v. Mosbacher, Civ. Action No. 91-11234-WD (Mass., Feb. 20, 1992).448ceed one for every 30,000 persons; each State shall have at least one Representative; and district boundaries may not cross state lines.14 Although the text of Article I determined the original apportionment that the Framers had agreed upon,15 it did not explain how that specific allocation had been made.When Congress first confronted the task of apportionment after the census of 1790 (and after Vermont and Kentucky had been admitted to the Union), it considered using the constitutional minimum of 30,000 persons as the size of each district. Dividing that number into the total population of 3,615,920 indicated that the House of Representatives should contain 120 members. When the number 30,000 was divided into the population of individual States, each quotient was a whole number with a fractional remainder. Thus, the use of the 30,000 divisor for Connecticut's population of 236,841 indicated that it should have 7.89 Representatives, while Rhode Island, with a population of 68,446, should have 2.28 Representatives. Because each State must be represented by a whole number of legislators, it was necessary either to disregard fractional remainders entirely or to treat some or all of them as equal to a whole Representative.1614 The first and second requirements are set forth explicitly in Article I, § 2, of the Constitution. The requirement that districts not cross state borders appears to be implicit in the text and has been recognized by continuous historical practice. See 775 F. Supp., at 1365, n. 4; id., at 1368 (O'Scannlain, J., dissenting).15 Section 2, cl. 3, required an enumeration of the population to be made within three years after the first meeting of Congress and provided that "until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three."16 See M. Balinski & H. Young, Fair Representation, Meeting the Ideal of One Man, One Vote 10-13 (1982) (hereinafter Balinski & Young).449In the first apportionment bill passed by Congress, an additional Representative was assigned to the nine States whose quotas had the highest fractional remainders. Thus, Connecticut's quota of 7.89 gave it 8 and Rhode Island's smaller remainder was disregarded, giving it only 2. Although that method was supported by Alexander Hamilton, Thomas Jefferson persuaded President Washington to veto the bill, in part because its allocation of eight Representatives to Connecticut exceeded the constitutional limit of one for every 30,000 persons.17In response to that veto, Congress adopted a proposal sponsored by Thomas Jefferson that disregarded fractional remainders entirely (thus giving Connecticut only seven Representatives). To overcome the basis for the veto, the size of the House was reduced from 120 to 105 members, giving each Representative an approximate constituency of 33,000 instead of 30,000 persons. Although both the total number of Representatives and the size of their districts in-17 See id., at 16-22. President Washington's veto message read as follows:"Gentlemen of the House of Representatives:"I have maturely considered the act passed by the two Houses entitled 'An act for an Apportionment of Representatives among the several States, according to the first Enumeration;' and I return it to your House, wherein it originated, with the following objections:"First. The Constitution has prescribed that Representatives shall be apportioned among the several States according to their respective numbers; and there is no one proportion or divisor which, applied to the respective numbers of the States, will yield the number and allotment of Representatives proposed by the bill."Second. The Constitution has also provided that the number of Representatives shall not exceed one for every thirty thousand; which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the States; and the bill has allotted to eight of the States more than one for every thirty thousand, "G. WASHINGTON"3 Annals of Congo 539 (1792).450creased,18 Jefferson's method of disregarding fractional remainders was used after each of the next four censuses. Today mathematicians sometimes refer to that method as the "method of greatest divisors," and suggest that it tends to favor large States over smaller States.19In 1832, Congress considered, but did not adopt, a proposal sponsored by John Quincy Adams that was the exact opposite of the Jefferson method. Instead of disregarding fractional remainders, Adams would have treated every fraction as a unit. Thus, using the former example as a hypothetical, both Connecticut and Rhode Island would have received one more Representative under the Adams method than they actually received under the Jefferson method. The Adams method is sometimes described as the "method of smallest divisors" and is said to favor the smaller States.20 It has never been endorsed by Congress.In 1842, Congress abandoned the Jefferson method in favor of an approach supported by Senator Daniel Webster. The Webster method took account of fractional remainders that were greater than one-half by allocating "one additional representative for each State having a fraction greater than one moiety." 21 Thus, if that method had been used in 1790, Connecticut's quota of 7.89 would have entitled it to 8 Representatives, whereas Rhode Island, with a quota of 2.28,18 The 1802 apportionment Act continued the ratio of 33,000, which then corresponded to a House of 141 Members. Act of Jan. 14, 1802, 2 Stat. 128. The third apportionment established a ratio of 35,000, which provided a House of 181 Members. Act of Dec. 21, 1811, 2 Stat. 669. The 1822 apportionment Act increased the ratio to 40,000 and the size of the House to 213. Act of Mar. 7, 1822, 3 Stat. 651. The 1832 apportionment Act provided for 240 districts representing an average of 47,700 persons each. Act of May 22, 1832, ch. 91,4 Stat. 516. See generally L. Schmeckebier, Congressional Apportionment 111-113 (1941).19 See Balinski & Young 73-75. 20 Ibid.21 Act of June 25, 1842, 5 Stat. 491.451would have received only 2. The Webster method is also described as the "method of major fractions."In 1850, Congress enacted legislation sponsored by Representative Vinton endorsing the approach that had been sponsored by Alexander Hamilton after the first census.22 Although this method was used during the balance of the 19th century, it occasionally seemed to produce paradoxical results.23 Congress rejected it in 1911, reverting to the Webster method. In that year Congress also passed legislation that ultimately fixed the number of Representatives at 435.24After the 1920 census Congress failed to pass a reapportionment Act, but debates over the proper method of apportionment ultimately led to a request to the National Academy of Sciences to appoint a committee of experts to review the subject. That committee, composed of respected mathematicians, recommended the adoption of the "method of equal proportions." Congress used that method in its ap-22 Act of May 23, 1850, §§ 24-26, 9 Stat. 432-433. Under the Hamilton/ Vinton method, the Nation's population was divided by the size of the House (set at 233 in 1850) to determine the ratio of persons per Representative. This ratio was then divided into the population of a State to establish its quota. Each State would receive the number of Representatives corresponding to the whole number of the quota (ignoring the fractional remainders). The remaining seats necessary to bring the nationwide total to the proper size (233 in 1850) would then be distributed to the States with the largest fractional remainders. In practice, the method was not strictly followed. See Balinski & Young 37; Chafee, Congressional Reapportionment, 42 Harv. L. Rev. 1015, 1025 (1929).23 The Hamilton/Vinton method was subject to the "Alabama paradox," a mathematical phenomenon in which a State's number of Representatives may decrease when the size of the House is increased. See Balinski & Young 38-40; Chafee, Congressional Reapportionment, 42 Harv. L. Rev., at 1026.24 The 1911 statute actually specified 433 Representatives but authorized an additional Representative for Arizona and New Mexico when they were admitted to the Union. See 37 Stat. 13. Additional Representatives were also authorized when Alaska and Hawaii were admitted to the Union in 1959, but the number thereafter reverted to 435, where it has remained ever since. See 72 Stat. 345; 73 Stat. 8.452portionment after the 1930 census, and formally adopted it in the 1941 statute at issue in this case.25The report of the National Academy of Sciences committee noted that Congress had properly rejected the Hamilton! Vinton method, and concluded that the use of only five methods could lead to a workable solution of the fractional remainder problem.26 In the opinion of the committee mem-25 Act of Nov. 15, 1941, § 1, 55 Stat. 761-762,2 U. S. C. §2a. That Act also made the reapportionment process self-executing, eliminating the need for Congress to enact an apportionment Act after each decennial census:"(a) On the first day, or within one week thereafter, of the first regular session of the Eighty-second Congress and of each fifth Congress thereafter, the President shall transmit to the Congress a statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained under the seventeenth and each subsequent decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member."(b) ... It shall be the duty of the Clerk of the House of Representatives, within fifteen calendar days after the receipt of such statement, to send to the executive of each State a certificate of the number of Representatives to which such State is entitled under this section."26 The five were the "method of smallest divisors," the "method of the harmonic mean," the "method of equal proportions," the "method of major fractions," and the "method of greatest divisors." 1 App. 17.Each of the methods corresponds to a different formula for producing a "priority list." A priority list is the mechanical method used in modern apportionments to translate a particular method of apportionment into a particular assignment of Representatives. The technical process of forming the priority list proceeds as follows. First, one Representative is assigned to each State to satisfy the constitutional guarantee. Second, the population of each State is divided by a certain tabulated series of divisors. Third, the quotients for all the States are arranged in a single series in order of size, beginning with the largest quotient, for the 51st Member of the House. This forms the priority list. The series of quotients is different for each of the five apportionment methods. See Chafee, Congressional Reapportionment, 42 Harv. L. Rev., at 1029, n. 39.The following are the divisors by which a State's population is divided under each method ("n" is the number of the State's next seat):453bers, given the fact that it is impossible for all States to have districts of the same size, the best method was the one that minimized the discrepancy between the size of the dis-See ibid. For example, the 1990 census indicated that the most populous States were California and New York. California had a population of 29,839,250, and New York had a population of 18,044,505. See 2 App. 20. Under the method of smallest divisors, the quotients are:second seat (divisor: n-1=1)third seat (divisor: n-1=2)California29,839,25014,919,625New York18,044,5059,022,252See 2 App. 53. Under the method of greatest divisors, the quotients are:second seat (divisor: n=2)third seat (divisor: n=3)California14,919,6259,946,417New York9,022,2526,014,835Under any method, the first 50 seats are assigned one to each State. If the method of smallest divisors is employed, the 51st seat is assigned to California, and the 52d seat is assigned to New York. Under the method of greatest divisors, however, California is assigned both the 51st and the 52d seats because the quotient for its third seat is 9,946,417, which is higher than the quotient for New York's second seat, which is 9,022,252. 454tricts in any pair of States. Under their test of fairness, a method was satisfactory if, for any pair of States, the transfer of one Representative would not decrease the discrepancy between those States' districts.27 The choice of a method depended on how one decided to measure the discrepancy between district sizes. Each of the five methods could be described as the "best" in the sense of minimizing the discrepancy between districts, depending on the discrepancy measure selected. The method of the harmonic mean, for example, yielded the fairest apportionment if the discrepancy was measured by the absolute difference between the number of persons per Representative. The method of major fractions was the best method if the discrepancy was measured by the absolute difference between the number of Representatives per person (also known as each person's "share" of a Representative).28 The method of equal proportions produced the fairest apportionment if the discrepancy27 The committee explained the test as follows:"Let the population of a State be A and the number of Representatives assigned to it according to a selected method of apportionment be a, and let Band b represent the corresponding numbers for a second State. Under an ideal apportionment the population Ala, Bib of the congressional districts in the two States should be equal, as well as the numbers alA, biB, of Representatives per person in each State. In practice it is impossible to bring this desirable result about for all pairs of States."In the opinion of the committee the best test of a desirable apportionment so far proposed is the following:"An apportionment of Representatives to various States, when the total number of Representatives is fixed, is mathematically satisfactory if for every pair of States the discrepancy between the numbers Ala and Bib cannot be decreased by assigning one or more Representative to the State A and one fewer to the State B, or vice versa, or if the two numbers alA and biB have the same property." 1 App. 18.28 A person's "share" of a Representative is the reciprocal of the population of a person's district. For example, in an ideal district under the 1990 census, each person has a share of 1/572,466 of a Representative.455was measured by the "relative difference" 29 in either the size of the district or the share of a Representative.30The report concluded by endorsing the method of equal proportions. The committee apparently preferred this method for two reasons. First, the method of equal proportions minimized the relative difference both between the size of congressional districts and between the number of Representatives per person. Second, in comparison with the other four methods considered, this method occupied an intermediate position in terms of favoring small States over large States: It favored small States more than major fractions and greatest divisors, but not as much as smallest divisors or the harmonic mean.31If either the method of smallest divisors or the method of the harmonic mean, also known as the "Dean Method," had been used after the 1990 census, Montana would have received a second seat. Under the method of equal proportions, which was actually used, five other States had stronger claims to an additional seat because Montana's claim to a second seat was the 441st on the equal proportions "priority list," see n. 26, supra.32 Montana would not have received29 "The relative difference between two numbers consists of subtracting the smaller number from the larger number and then dividing the result by the smaller number." 1 App. 24 (Ernst Declaration).30 See ibid.31 See id., at 19. The committee considered only the extent to which each method favored the small or large States in comparison to the other methods. The committee did not attempt to determine absolute bias. Some scholars have asserted that in absolute terms, the method of equal proportions favors small States over large States and that the method of major fractions is the method with the least inherent bias between small and large States. See Balinski & Young 72-78. That contention has been disputed. See Massachusetts v. Mosbacher, Civ. Action No. 9111234-WD (Mass., Feb. 20, 1992), p. 57.322 App. 35.456a second seat under either the method of major fractions or greatest divisors.IIIThe Government argues that Congress' selection of any of the alternative apportionment methods involved in this litigation is not subject to judicial review. Relying principally on Baker v. Carr, 369 U. S. 186 (1962), the Government contends that the choice among these methods presents a "political question" not amenable to judicial resolution.In Baker v. Carr, after an extensive review of our prior cases involving political questions, we concluded:"It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. The doctrine of which we treat is one of 'political questions,' not one of 'political cases.' The courts cannot reject as 'no law suit' a bona fide controversy as457to whether some action denominated 'political' exceeds constitutional authority." Id., at 217.The Government insists that each of the factors identified in Baker supports the conclusion that the question presented here is committed to the "political branches" to the exclusion of the Judiciary. Significantly, however, the Government does not suggest that all congressional decisions relating to apportionment are beyond judicial review. The Government does not, for instance, dispute that a court could set aside an apportionment plan that violated the constitutional requirement that "[t]he number of Representatives shall not exceed one for every thirty Thousand."33 Further, with respect to the provision that Representatives "shall be apportioned among the several States ... according to their respective Numbers,"34 the Government acknowledges that Congress has a judicially enforceable obligation to select an apportionment plan that is related to population.35 The gravamen of the Government's argument is that the District Court erred in concluding that the Constitution imposes the more rigorous requirement of greatest possible equality in the size of congressional districts, as measured by absolute deviation from ideal district size. The Government then does not dispute Montana's contention that the Constitution places substantive limitations on Congress' apportionment power and that violations of those limitations would present a justiciable controversy. Where the parties differ is in their understanding of the content of these limitations. In short, the Government takes issue not with the existence of a judicially enforceable right, but with the definition of such a right.When a court concludes that an issue presents a nonjusticiable political question, it declines to address the merits of33 U. S. Const., Art. I, § 2, cl. 3. 34 Ibid.35 See Brief for United States 24-34; Tr. of Oral Arg. 10-13.458that issue. See Gilligan v. Morgan, 413 U. S. 1, 10-12 (1973); Baker v. Carr, 369 U. S., at 197; see also Colegrove v. Green, 328 U. S. 549, 552-556 (1946) (plurality opinion). In invoking the political question doctrine, a court acknowledges the possibility that a constitutional provision may not be judicially enforceable.36 Such a decision is of course very different from determining that specific congressional action does not violate the Constitution.37 That determination is a decision on the merits that reflects the exercise of judicial review, rather than the abstention from judicial review that would be appropriate in the case of a true political question.The case before us today is "political" in the same sense that Baker v. Carr was a "political case." 369 U. S., at 217. It raises an issue of great importance to the political branches.38 The issue has motivated partisan and sectional debate during important portions of our history. Nevertheless, the reasons that supported the justiciability of challenges to state legislative districts, as in Baker v. Carr, as well as state districting decisions relating to the election of Members of Congress, see, e. g., Wesberry v. Sanders, 376 U. S. 1 (1964); Karcher v. Daggett, 462 U. S. 725 (1983), apply with equal force to the issues presented by this litigation. The controversy between Montana and the Government turns on the proper interpretation of the relevant constitutional provisions. As our previous rejection of the political question doctrine in this context should make clear, the interpretation of the apportionment provisions of the Constitution is well within the competence of the Judiciary. See36 See Henkin, Is There a "Political Question" Doctrine?, 85 Yale L. J. 597, 599 (1976).37 See M. Redish, The Federal Courts in the Political Order 116-117 (1991).38 Not only is the composition of the House of Representatives implicated by the case, but also the composition of the electoral college that elects the President. That college includes representation from each State equivalent to the sum of its Senators and Representatives. U. S. Const., Art. II, § 1, cl. 2.459Davis v. Bandemer, 478 U. S. 109, 123 (1986); Baker v. Carr, 369 U. S., at 234-237; cf. Gilligan v. Morgan, 413 U. S., at 11. The political question doctrine presents no bar to our reaching the merits of this dispute and deciding whether the District Court correctly construed the constitutional provisions at issue.Our previous apportionment cases concerned States' decisions creating legislative districts; today we review the actions of Congress. Respect for a coordinate branch of Government raises special concerns not present in our prior cases, but those concerns relate to the merits of the controversy rather than to our power to resolve it. As the issue is properly raised in a case otherwise unquestionably within our jurisdiction, we must determine whether Congress exercised its apportionment authority within the limits dictated by the Constitution. See INS v. Chadha, 462 U. S. 919, 940941 (1983); Powell v. McCormack, 395 U. S. 486, 521 (1969). Without the need for another exploration of the Baker factors, it suffices to say that, as in Baker itself and the apportionment cases that followed, the political question doctrine does not place this kind of constitutional interpretation outside the proper domain of the Judiciary.IVIn Wesberry v. Sanders, 376 U. S. 1 (1964), the Court considered the claim of voters in Fulton County, Georgia, that the disparity between the size of their congressional district (823,680) and the average size of the 10 districts in Georgia (394,312) deprived them of the right "to have their votes for Congressmen given the same weight as the votes of other Georgians." Id., at 3. This Court upheld the claim, concluding that Article I, § 2, had established a "high standard of justice and common sense" for the apportionment of congressional districts: "equal representation for equal numbers of people." 376 U. S., at 18. The constitutional command that Representatives be chosen "by the People of the several460States" meant that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." Id., at 7-8. Writing for the Court, Justice Black explained:"It would defeat the principle solemnly embodied in the Great Compromise-equal representation in the House for equal numbers of people-for us to hold that, within the States, legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than others. The House of Representatives, the Convention agreed, was to represent the people as individuals, and on a basis of complete equality for each voter." Id., at 14.In subsequent cases, the Court interpreted that standard as imposing a burden on the States to "make a good-faith effort to achieve precise mathematical equality." Kirkpatrick v. Preisler, 394 U. S., at 530-531; see also Karcher v. Daggett, 462 U. S., at 730.Our cases applying the Wesberry standard have all involved disparities in the size of voting districts within the same State. In this case, however, Montana contends, and a majority of the District Court agreed, that the Wesberry standard also applies to apportionment decisions made by Congress and that it was violated because of an unjustified variance between the population of Montana's single district and the ideal district size.Montana's evidence demonstrated that if Congress had used the method of the harmonic mean, sometimes referred to as the "Dean Method," instead of the method of equal proportions, sometimes called the "Hill Method," to apportion the districts, 48 of the States would have received the same number of Representatives, while Washington would have received one less-eight instead of nine-and Montana would have received one more. Under an apportionment undertaken according to the Hill Method, the absolute differ-461ence between the population of Montana's single district (803,655) and the ideal (572,466) is 231,189; the difference between the average Washington district (543,105) and the ideal is 29,361. Hence, the sum of the differences between the average and the ideal district size in the two States is 260,550. Under the Dean Method, Montana would have two districts with an average population of 401,838, representing a deviation from the ideal of 170,638; Washington would then have eight districts averaging 610,993, which is a deviation of 38,527 from the ideal district size. The sum of the deviations from the ideal in the two States would thus be 209,165 under the Dean Method (harmonic mean), while it is 260,550 under the Hill Method (equal proportions). More generally, Montana emphasizes that the Dean Method is the best method for minimizing the absolute deviations from ideal district size.There is some force to the argument that the same historical insights that informed our construction of Article I, § 2, in the context of intrastate districting should apply here as well. As we interpreted the constitutional command that Representatives be chosen "by the People of the several States" to require the States to pursue equality in representation, we might well find that the requirement that Representatives be apportioned among the several States "according to their respective Numbers" would also embody the same principle of equality. Yet it is by no means clear that the facts here establish a violation of the Wesberry standard. In cases involving variances within a State, changes in the absolute differences from the ideal produce parallel changes in the relative differences. Within a State, there is no theoretical incompatibility entailed in minimizing both the absolute and the relative differences. In this case, in contrast, the reduction in the absolute difference between the size of Montana's district and the size of the ideal district has the462effect of increasing the variance in the relative difference 39 between the ideal and the size of the districts in both Montana and Washington.4o Moreover, whereas reductions in the variances among districts within a given State bring all of the affected districts closer to the ideal, in this case a change that would bring Montana closer to the ideal pushes the Washington districts away from that idea1.4139 See n. 29, supra.40 Under the Hill Method (equal proportions), the relative differences between Montana's and Washington's districts and the ideal, respectively, are 40.4% and 5.4%; under the Dean Method (harmonic mean), they are 42.5% and 6.7%. See 1 App. 27.The absolute and relative differences between the actual average district size and the ideal district size in an apportionment using the Hill Method (Montana has one Representative, and Washington has nine Representatives) are as follows:AverageDistrictSizeAbsoluteDifferenceFrom IdealRelativeDifferenceFrom IdealMontana803,655231,18940.4%Washington543,10529,3615.4%Total Absolute Difference260,550The absolute and relative differences between the actual average district size and the ideal district size in an apportionment using the Dean Method (Montana has two Representatives, and Washington has eight Representatives) are as follows:AverageDistrictSizeAbsoluteDifferenceFrom IdealRelativeDifferenceFrom IdealMontana401,828170,63842.5%Washington610,99338,5276.7%Total Absolute Difference209,165The relative difference from the ideal is less both for Montana and for Washington in a Hill apportionment; the total absolute difference from the ideal is less in a Dean apportionment.41 Indeed, as Washington has more districts than Montana, it could be argued that deviation from ideal district size in Washington represents a more significant departure from the goal of equal representation than does a similar deviation in Montana. In his dissent in the District Court, Judge O'Scannlain noted the potential importance of taking account of theRelative Difference From Ideal 42.5% 6.7%463What is the better measure of inequality-absolute difference in district size, absolute difference in share of a Representative, or relative difference in district size or share? N either mathematical analysis nor constitutional interpretation provides a conclusive answer. In none of these alternative measures of inequality do we find a substantive principle of commanding constitutional significance. The polestar of equal representation does not provide sufficient guidance to allow us to discern a single constitutionally permissible course.A State's compliance with Wesberry's "high standard of justice and common sense" begins with a good-faith effort to produce complete equality for each voter. As our cases involving variances of only a fraction of one percent demonstrate, that goal is realistic and appropriate for state districting decisions. See Karcher v. Daggett, 462 U. S., at 730-743. In this case, however, whether Montana has one district or two, its variance from the ideal will exceed 40 percent.The constitutional guarantee of a minimum of one Representative for each State inexorably compels a significant departure from the ideal. In Alaska, Vermont, and Wyoming, where the statewide districts are less populous than the ideal district, every vote is more valuable than the national average. Moreover, the need to allocate a fixed number of indivisible Representatives among 50 States of varying populations makes it virtually impossible to have the same size district in any pair of States, let alone in all 50. Accordingly, although "common sense" supports a test requiring "a goodfaith effort to achieve precise mathematical equality" within each State, Kirkpatrick v. Preisler, 394 U. S., at 530-531, the constraints imposed by Article I, § 2, itself make that goal illusory for the Nation as a whole.number of districts in a State, rather than merely the average size of a district. See 775 F. Supp., at 1371.464This commonsense understanding of a characteristic of our Federal Government must have been obvious to the masters of compromise who framed our Constitution. The spirit of compromise that provided two Senators for every State and Representatives of the People "according to their respective Numbers" in the House must also have motivated the original allocation of Representatives specified in Article I, § 2, itself. Today, as then, some compromise between the interests of larger and smaller States must be made to achieve a fair apportionment for the entire country.The constitutional framework that generated the need for compromise in the apportionment process must also delegate to Congress a measure of discretion that is broader than that accorded to the States in the much easier task of determining district sizes within state borders. Article I, § 8, cl. 18, expressly authorizes Congress to enact legislation that "shall be necessary and proper" to carry out its delegated responsibilities. Its apparently good-faith choice of a method of apportionment of Representatives among the several States "according to their respective Numbers" commands far more deference than a state districting decision that is capable of being reviewed under a relatively rigid mathematical standard.4242 Some evidence suggests that partisan political concerns may have influenced Congress' initial decision to adopt the equal proportions method in 1941. The choice of this method resulted in the assignment of an additional seat to Arkansas, a Democratic State, rather than to Michigan, a State with more Republican leanings. The vote to adopt equal proportions was along party lines (except for the Democrats from Michigan, who opposed the bill). See Balinski & Young 57-58; see also 775 F. Supp., at 1365. Nevertheless, although Congress has considered the apportionment problem periodically since 1941, it has not altered that initial choice. See Massachusetts v. Mosbacher, Civ. Action No. 91-11234-WD (Mass., Feb. 20, 1992), pp. 40-42. Montana does not contend that the equal proportions method systematically favors a particular party, nor that its retention over a 50-year period reflects efforts to maintain partisan political advantage.465The District Court suggested that the automatic character43 of the application of the method of equal proportions was inconsistent with Congress' responsibility to make a fresh legislative decision after each census.44 We find no merit in this suggestion. Indeed, if a set formula is otherwise constitutional, it seems to us that the use of a procedure that is administered efficiently and that avoids partisan controversy supports the legitimacy of congressional action, rather than undermining it. To the extent that the potentially divisive and complex issues associated with apportionment can be narrowed by the adoption of both procedural and substantive rules that are consistently applied year after year, the public is well served, provided, of course, that any such rule remains open to challenge or change at any time. We see no constitutional obstacle preventing Congress from adopting such a sensible procedure.The decision to adopt the method of equal proportions was made by Congress after decades of experience, experimentation, and debate about the substance of the constitutional requirement. Independent scholars supported both the basic decision to adopt a regular procedure to be followed after each census and the particular decision to use the method of equal proportions.45 For a half century the results of that method have been accepted by the States and43 See n. 25, supra.44 See 775 F. Supp., at 1366.45 In his article Congressional Reapportionment, written in 1929, Zechariah Chafee, Jr., wrote:"[B]oth mathematical and political reasons point to the Method of Equal Proportions as the best plan for a just apportionment .... Congress has power to delegate the task to the president or other high official, if the size of the House and the method be definitely indicated .... It is very desirable that this permanent plan should embody the best method now known, so that it may operate for many decades without constant demands for revision. Congress will then no longer need to engage in prolonged debates and committee hearings every ten years. Reapportionment will be taken out of politics." 42 Harv. L. Rev., at 1047.466the Nation. That history supports our conclusion that Congress had ample power to enact the statutory procedure in 1941 and to apply the method of equal proportions after the 1990 census.The judgment of the District Court is reversed.It is so ordered

OCTOBER TERM, 1991SyllabusUNITED STATES DEPARTMENT OF COMMERCE ET AL. v. MONTANA ET AL.APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANANo. 91-860. Argued March 4, 1992-Decided March 31, 1992Article I, § 2, of the Constitution requires apportionment of Representatives among the States "according to their respective Numbers." A 1941 federal statute provides that after each decennial census "the method known as the method of equal proportions" shall be used to determine the number of Representatives to which each State is entitled. Application of that method to the 1990 census caused Montana to lose one of its two seats in the House of Representatives. If it had retained both seats, each district would have been closer to the ideal size of a congressional district than the reapportioned single district. The State and several of its officials (hereinafter Montana) sued appropriate federal defendants (hereinafter the Government) in the District Court, alleging, inter alia, that the existing apportionment method violates Article I, § 2. A three-judge court, convened pursuant to 28 U. S. C. § 2284, granted Montana summary judgment on this claim, holding the statute unconstitutional because the variance between the single district's population and that of the ideal district could not be justified under the "one-person, one-vote" standard developed in Wesberry v. Sanders, 376 U. S. 1, and other intrastate districting cases.Held: Congress exercised its apportionment authority within the limits dictated by the Constitution. Pp.447-466.(a) The general admonition in Article I, § 2, that apportionment be made "according to [the States'] respective numbers" is constrained by three constitutional requirements: the number of Representatives shall not exceed one for every 30,000 persons; each State shall have at least one Representative; and district boundaries may not cross state lines. In light of those constraints and the problem of fractional remainders-i. e., the fractional portion of the number that results when the State's total population is divided by the population of the ideal district must either be disregarded or treated as equal to one Representative because each State must be represented by a whole number oflegislators-Congress has considered and either rejected or adopted various apportionment methods over the years, the most recent method tried being the method of equal proportions, also known as the "Hill Method." A National Academy of Sciences committee recommended that method as the fairest of the five443methods the committee felt could lead to a workable solution to the fractional remainder problem. If Congress had chosen the method of the harmonic mean, also known as the "Dean Method," Montana would have received a second seat after the 1990 census. pp.447-456.(b) This Court rejects the Government's argument that Congress' selection of any of the alternative apportionment methods presents a "political question" that is not subject to judicial review under the standards set forth in Baker v. Carr, 369 U. S. 186, 217. Significantly, the Government does not suggest that all congressional decisions relating to apportionment are beyond judicial review, but merely argues that the District Court erred in concluding that the Constitution requires the greatest possible equality in the size of congressional districts, as measured by absolute deviation from ideal district size. Thus, the controversy here turns on the proper interpretation of the relevant constitutional provisions. As in Baker itself and the apportionment cases that followed, the political question doctrine does not place this kind of constitutional interpretation outside the proper domain of the Judiciary. Pp.456-459.(c) Congress had ample power to enact the statutory procedure at issue and to apply the Hill Method after the 1990 census. It is by no means clear that the facts here establish a violation of the Wesberry one-person, one-vote standard. Although Montana's evidence demonstrated that application of the Dean Method would decrease the absolute deviation from the ideal district size, it also would increase the relative difference between the ideal and the size of the districts both in Montana and in Washington, the only State that would have lost a Representative under the Dean Method. Wesberry's polestar of equal representation does not provide sufficient guidance to determine what is the better measure of inequality. Moreover, while subsequent intrastate districting cases have interpreted the Wesberry standard as imposing a burden on the States to make a good-faith effort to achieve precise mathematical equality, that goal is rendered illusory for the Nation as a whole by the constraints imposed by Article I, § 2: the guarantee of a minimum of one Representative for each State and the need to allocate a fixed number of indivisible Representatives among 50 States of varying populations. The constitutional framework that generated the need for a compromise between the interests oflarger and smaller States must also delegate to Congress a measure of discretion broader than that accorded to the States, and Congress' apparently good-faith decision to adopt the Hill Method commands far more deference, particularly as it was made after decades of experience, experimentation, and debate, was supported by independent scholars, and has been accepted for a half century. Pp. 459-466.775 F. Supp. 1358, reversed.STEVENS, J., delivered the opinion for a unanimous Court.444Full Text of Opinion

1972_71-1639

MR. JUSTICE WHITE delivered the opinion of the Court.Section 818 of Oklahoma's Merit System of Personnel Administration Act, Okla.Stat.Ann., Tit. 74, § 801 et seq., restricts the political activities of the State's classified civil servants in much the same manner that the Hatch Act proscribes partisan political activities of federal employees. Three employees of the Oklahoma Corporation Commission who are subject to the proscriptions of § 818 seek to have two of its paragraphs declared unconstitutional on their face and enjoined because of asserted vagueness and overbreadth. After a hearing, the District Court upheld the provisions and denied relief. 338 F. Supp. 711. We noted probable jurisdiction of the appeal, 409 U.S. 1058, so that appellants' claims could be considered together with those of their federal counterparts in CSC v. Letter Carriers, ante p. 413 U. S. 548. We affirm the judgment of the District Court. Page 413 U. S. 603Section 818 was enacted in 1959, when the State first established its Merit System of Personnel Administration. [Footnote 1] The section serves roughly the same function as Page 413 U. S. 604 the analogous provisions of the other 49 States, [Footnote 2] and is patterned on § 9(a) of the Hatch Act. [Footnote 3] Without question, a broad range of political activities and conduct Page 413 U. S. 605 is proscribed by the section. Paragraph six, one of the contested portions, provides that"[n]o employee in the classified service . . . shall, directly or indirectly, Page 413 U. S. 606 solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization, candidacy or other political purpose."Paragraph seven, the other challenged paragraph, provides that no such employee"shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office."That paragraph further prohibits such employees from"tak[ing] part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote."As a complementary proscription (not challenged in this lawsuit) the first paragraph prohibits any person from "in any way" being "favored or discriminated against with respect to employment in the classified service because of his political . . . opinions or affiliations." Responsibility for maintaining and enforcing § 818's proscriptions is vested in the State Personnel Board and the State Personnel Director, who is appointed by the Board. Violation of § 818 results in dismissal from employment and possible criminal sanctions and limited state employment ineligibility. Okla.Stat.Ann., Tit. 74, §§ 818 and 819.Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from "political extortion." [Footnote 4] See United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 99-103 (1947). Rather, appellants maintain that however permissible, Page 413 U. S. 607 even commendable, the goals of § 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, [Footnote 5] appellants assert that the sixth and seventh paragraphs of § 818 are void in toto and cannot be enforced against them or anyone else. [Footnote 6]We have held today that the Hatch Act is not impermissibly vague. CSC v. Letter Carriers, ante, p. 413 U. S. 548. We have little doubt that § 818 is similarly not so vague that "men of common intelligence must necessarily guess at its meaning." Connally v. General Construction Co., 269 U. S. 385, 269 U. S. 391 (1926). See Grayned v. City of Rockford, 408 U. S. 104, 408 U. S. 108-1 14 (1972); Colten v. Kentucky, 407 U. S. 104, 407 U. S. 110-111 (1972); Cameron v. Johnson, 390 U. S. 611, 390 U. S. 616 (1968). Whatever other problems there are with § 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out "explicit standards" for those who must apply it. Grayned v. City of Rockford, supra, at 408 U. S. 108. In the plainest language, it Page 413 U. S. 608 prohibits any state classified employee from being "an officer or member." of a "partisan political club" or a candidate for "any paid public office." It forbids solicitation of contributions "for any political organization, candidacy or other political purpose" and taking part "in the management or affairs of any political party or in any political campaign." Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in § 818 as "partisan," or "take part in," or "affairs of" political parties. But what was said in Letter Carriers, ante at 413 U. S. 578-579, is applicable here:"there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that, although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. [Footnote 7]"Moreover, even if the outermost boundaries of § 818 may be imprecise, any such uncertainty has little relevance here, where appellants' conduct falls squarely within the "hard core" of the statute's proscriptions and appellants concede as much. [Footnote 8] See Dombrowski v. Pfister, 380 U. S. 479, 380 U. S. 491-492 (1965); United States v. National Dairy Products Corp., 372 U. S. 29 (1963); Williams v. United States, 341 U. S. 97 (1951); Robinson v. United States, 324 U. S. 282, 324 U. S. 286 (1945); United States v. Wurzbach, 280 U. S. 396 (1930). Page 413 U. S. 609Shortly before appellants commenced their action in the District Court, they were charged by the State Personnel Board with patent violations of § 818. [Footnote 9] According to the Board's charges, appellants actively participated in the 1970 reelection campaign of a Corporation Commissioner, appellants' superior. All three allegedly asked other Corporation Commission employees (individually and in groups) to do campaign work or to give referrals to persons who might help in the campaign. Most of these requests were made at district offices of the Commission's Oil and Gas Conservation Division. Two of the appellants were charged with soliciting money for the campaign from Commission employees and one was also charged with receiving and distributing campaign posters in bulk. In the context of this type of obviously covered conduct, the statement of Mr. Justice Holmes is particularly appropriate: "if there is any difficulty . . . , it will be time enough to consider it when raised by someone whom it concerns." United States v. Wurzbach, supra, at 280 U. S. 399.Appellants assert that § 818 has been construed as applying to such allegedly protected political expression as the wearing of political buttons or the displaying Page 413 U. S. 610 of bumper stickers. [Footnote 10] But appellants did not engage in any such activity. They are charged with actively engaging in partisan political activities -- including the solicitation of money -- among their coworkers for the benefit of their superior. Appellants concede -- and correctly so, see Letter Carriers, supra -- that § 818 would be constitutional as applied to this type of conduct. [Footnote 11] They nevertheless maintain that the statute is overbroad, and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here.Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. See, e.g., 74 U. S. The Aldermen, 7 Wall. 694, 74 U. S. 698-699 (1869); Supervisors v. Stanley, 105 U. S. 305, 105 U. S. 311-315 ( 1882); Hatch v. Reardon, 204 U. S. 152, 204 U. S. 160-161 (1907); Yazoo & M. v. R. Co. v. Jackson Vinegar Co., 226 U. S. 217, 226 U. S. 219-220 (1912); United States v. Wurzbach, supra, at 280 U. S. 399; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 301 U. S. 513 (1937); United States v. Raines, 362 U. S. 17 (1960). A closely related principle is that constitutional rights are personal, and may not be asserted vicariously. See McGowan v. Maryland, 366 U. S. 420, 366 U. S. 429-430 (1961). These principles rest on more than the fussiness of judges. They reflect the conviction that, under our constitutional system, courts Page 413 U. S. 611 are not roving commissions assigned to pass judgment on the validity of the Nation's laws. See Younger v. Harris, 401 U. S. 37, 401 U. S. 52 (1971). Constitution,al judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court:"So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."Marbury v. Madison, 1 Cranch 137, 5 U. S. 178 (1803).In the past, the Court has recognized some limited exceptions to these principles, but only because of the most "weighty countervailing policies." United States v. Raines, 362 U.S. at 362 U. S. 22-23. [Footnote 12] One such exception is where individuals not parties to a particular suit stand to lose by its outcome, and yet have no effective avenue of preserving their rights themselves. See Eisenstadt v. Baird, 405 U. S. 438, 405 U. S. 444-446 (1972); NAACP v. Alabama, 357 U. S. 449 (1958). Another exception has been carved out in the area of the First Amendment.It has long been recognized that the First Amendment needs breathing space, and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn, and represent a considered legislative judgment that a particular mode of expression Page 413 U. S. 612 has to give way to other compelling needs of society. Herndon v. Lowry, 301 U. S. 242, 301 U. S. 258 (1937); Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488 (1960); Grayned v. City of Rockford, 408 U.S. at 408 U. S. 116-117. As a corollary, the Court has altered its traditional rules of standing to permit -- in the First Amendment area --"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."Dombrowski v. Pfister, 380 U.S. at 380 U. S. 486. Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.Such claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate "only spoken words." Gooding v. Wilson, 405 U. S. 518, 405 U. S. 520 (1972). See Cohen v. California, 403 U. S. 15 (1971); Street v. New York, 394 U. S. 576 (1969); Brandenburg v. Ohio, 395 U. S. 444 (1969); Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Overbreadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. See Keyishian v. Board of Regents, 385 U. S. 589 (1967); United States v. Robel, 389 U. S. 258 (1967); Aptheker v. Secretary of State, 378 U. S. 500 (1964); Shelton v. Tucker, supra. Facial Page 413 U. S. 613 overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, see Grayned v. City of Rockford, supra, at 408 U. S. 114-121; Cameron v. Johnson, 390 U.S. at 390 U. S. 617-619; Zwickler v. Koota, 389 U. S. 241, 389 U. S. 249-250 (1967); Thornhill v. Alabama, 310 U. S. 88 (1940), and where such conduct has required official approval under laws that delegated standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights. See Shuttlesworth v. Birmingham, 394 U. S. 147 (1969); Cox v. Louisiana, 379 U. S. 536, 379 U. S. 553-558 (1965); Kunz v. New York, 340 U. S. 290 (1951); Lovell v. Griffin, 303 U. S. 444 (1938).The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly, and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. See Dombrowski v. Pfister, 380 U.S. at 380 U. S. 491; Cox v. New Hampshire, 312 U. S. 569 (1941); United States v. Thirty-seven Photographs, 402 U. S. 363 (1971); cf. Breard v. Alexandria, 341 U. S. 622 (1951). Equally important, overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. In Cantwell v. Connecticut, 310 U. S. 296 (1940), Jesse Cantwell, a Jehovah's Witness, was convicted of common law breach of the peace for playing a phonograph record attacking the Page 413 U. S. 614 Catholic Church before two Catholic men on a New Haven street. The Court reversed the judgment affirming Cantwell's conviction, but only on he ground that his conduct, "considered in the light of the constitutional guarantees," could not be punished under "the common law offense in question." Id. at 310 U. S. 311 (footnote omitted). The Court did not hold that the offense "known as breach of the peace" must fall in toto because it was capable of some unconstitutional applications, and, in fact, the Court seemingly envisioned its continued use against "a great variety of conduct destroying or menacing public order and tranquility." Id. at 310 U. S. 308. See Garner v. Louisiana, 368 U. S. 157, 368 U. S. 202, 368 U. S. 203, 368 U. S. 205 (1961) (Harlan, J., concurring in judgment). Similarly, in reviewing the statutory breach-of-the-peace convictions involved in Edwards v. South Carolina, 372 U. S. 229 (1963), and Cox v. Louisiana, supra, at 379 U. S. 544-552, the Court considered in detail the State's evidence, and in each case concluded that the conduct at issue could not itself be punished under a breach of the peace statute. On that basis, the judgments affirming the convictions were reversed. [Footnote 13] See also Teamsters Union v. Vogt, Inc., 354 U. S. 284 (1957). Additionally, overbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment, but doing so in a neutral, noncensorial manner. See United States Page 413 U. S. 615 v. Harriss, 347 U. S. 612 (1954); United States v. CIO, 335 U. S. 106 (1948); cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); Pickering v. Board of Education, 391 U. S. 563, 391 U. S. 565 n. 1 (1968); Eastern Railroad Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961).It remains a "matter of no little difficulty" to determine when a law may properly be held void on its face and when "such summary action" is inappropriate. Coates v. City of Cincinnati, 402 U. S. 611, 402 U. S. 617 (1971) (opinion of Black, J.). But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice, and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct, and that conduct -- even if expressive -- falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect -- at best a prediction -- cannot, with confidence, justify invalidating a statute on its face, and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U. S. 165, 394 U. S. 174-175 (1969). To put the matter another way, particularly where conduct, and not merely speech, is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that § 818 is not substantially overbroad, and that whatever overbreadth may exist should be cured through case-by-case Page 413 U. S. 616 analysis of the fact situations to which its sanctions, assertedly, may not be applied. [Footnote 14]Unlike ordinary breach of the peace statutes or other broad regulatory acts, § 818 is directed, by its terms, at political expression which, if engaged in by private persons, would plainly be protected by the First and Fourteenth Amendments. But at the same time, § 818 is not a censorial statute, directed at particular groups or viewpoints. Cf. Keyishian v. Board of Regents, supra. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicated, such statutes have, in the past, been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that § 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers, supra. Under the decision in Letter Carriers, there is no question that § 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, Page 413 U. S. 617 or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate.These proscriptions are taken directly from the contested paragraphs of § 818, the Rules of the State Personnel Board and its interpretive circular, and the authoritative opinions of the State Attorney General. Without question, the conduct appellants have been charged with falls squarely within these proscriptions.Appellants assert that § 818 goes much farther than these prohibitions. According to appellants, the statute's prohibitions are not tied tightly enough to partisan political conduct and impermissibly relegate employees to expressing their political views "privately." The State Personnel Board, however, has construed § 818's explicit approval of "private" political expression to include virtually any expression not within the context of active partisan political campaigning, [Footnote 15] and the State's Attorney General, in plain terms, has interpreted § 818 as prohibiting "clearly partisan political activity" only. [Footnote 16] Page 413 U. S. 618 Surely a court cannot be expected to ignore these authoritative pronouncements in determining the breadth of a statute. Law Students Research Council v. Wadmond, 401 U. S. 154, 401 U. S. 162-163 (1971). Appellants further point to the Board's interpretive rules purporting to restrict such allegedly protected activities as the wearing of political buttons or the use of bumper stickers. It may be that such restrictions are impermissible and that § 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that § 818 must be discarded in toto because some persons' arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and is not, therefore, unconstitutional on its face.The judgment of the District Court is affirmed.It is so ordered

U.S. Supreme CourtBroadrick v. Oklahoma, 413 U.S. 601 (1973)Broadrick v. OklahomaNo. 71-1639Argued March 26, 1973Decided June 25, 1973413 U.S. 601SyllabusAppellants, state employees charged by the Oklahoma State Personnel Board with actively engaging in partisan political activities (including the solicitation of money) among their coworkers for the benefit of their superior, in alleged violation of § 818 of the state merit system Act, brought this suit challenging the Act's validity on the grounds that two of its paragraphs are invalid because of overbreadth and vagueness. One paragraph provides that no classified service employee"shall directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization, candidacy or other political purpose."The other provides that no such employee shall belong to "any national, state or local committee of a political party" or be an officer or member of a committee or a partisan political club, or a candidate for any paid public office, or take part in the management or affairs of any political party or campaign "except to exercise his right as a citizen privately to express his opinion and . . . vote." The District Court upheld the provisions.Held: Section 818 of the Oklahoma statute is not unconstitutional on its face. CSC v. Letter Carriers, ante, p. 413 U. S. 548. Pp. 413 U. S. 607-618.(a) The statute, which gives adequate warning of what activities it proscribes and sets forth explicit standards for those who must apply it, is not impermissibly vague. Pp. 413 U. S. 607-608.(b) Although appellants contend that the statute reaches activities that are constitutionally protected as well as those that are not, it is clearly constitutional as applied to the conduct with which they are charged, and, because it is not substantially overbroad, they cannot challenge the statute on the ground that it might be applied unconstitutionally to others, in situations not before the Court. Appellants' conduct falls squarely within the proscriptions of § 818, which deals with activities that the State has ample power to regulate, United Public Workers v. Mitchell, 330 U. S. 75; Page 413 U. S. 602 CSC v. Letter Carriers, supra, and the operation of the statute has been administrative!y confined to clearly partisan political activity. Pp. 413 U. S. 609-618.338 F. Supp. 711, affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 413 U. S. 618. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 621.

1966_176

MR. JUSTICE FORTAS delivered the opinion of the Court.Appellees were indicted under 18 U.S.C. § 371 for conspiring to violate § 215(b) of the Immigration and Nationality Act of 1952, 66 Stat. 190, 8 U.S.C. Page 385 U. S. 477 § 1185(b). The alleged conspiracy consisted of recruiting and arranging the travel to Cuba of 58 American citizens whose passports, although otherwise valid, were not specifically validated for travel to that country. [Footnote 1]The District Court granted appellees' motion to dismiss the indictment. Chief Judge Zavatt filed an exhaustive opinion (253 F. Supp. 433 (D.C.E.D.N.Y.)). Notice of direct appeal to this Court was filed, and we noted probable jurisdiction under 18 U.S.C. § 3731 because the dismissal was "based upon the . . . construction of the statute upon which the indictment . . . is founded." We affirm. Our decision rests entirely upon our construction of the relevant statutes and regulations.Two statutes are relevant to this case. The first is the Passport Act of 1926, 44 Stat. 887, 22 U.S.C. § 211a. This is the general statute authorizing the Secretary of State to "grant and issue passports." It is not a criminal statute. The second statute is § 215(b) of the Immigration and Nationality Act of 1952, supra, under which the present indictments were brought. Section 215(b) was enacted on June 27, 1952. It is a reenactment of the Act of May 22, 1918 (40 Stat. 559), and the Act of June 21, 1941 (55 Stat. 252). It provides that:"When the United States is at war or during the existence of any national emergency proclaimed by the President . . . and [when] the President shall find that the interests of the United States require that restrictions and prohibitions . . . be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall . . . (b) . . . be unlawful for any citizen of the United States to depart from or Page 385 U. S. 478 enter, or attempt to depart from or enter, the United States unless he bears a valid passport."(Italics added.) Willful violation is subjected to a fine of not more than $5,000 or imprisonment for five years, or both.On January 17, 1953, President Truman made the finding and proclamation required by § 215(b). [Footnote 2] As a consequence, a valid passport has been required for departure and entry of United States nationals from and into the United States and its territories, except as to areas specifically exempted by regulations. The proclamation adopted the regulations which the Secretary of State had promulgated under the predecessors of § 215(b) exempting from the passport requirement departure to or entry from "any country or territory in North, Central, or South America (including Cuba)." 22 CFR § 53.3(b) (1958 rev.). On January 3, 1961, the United States broke diplomatic relations with Cuba. On January 16, 1961, the Deputy Under Secretary of State for Administration issued the "Excluding Cuba" amendment (22 CFR § 53.3 (1965 rev.), 26 Fed.Reg. 482). That amendment added the two words "excluding Cuba" to the phrase quoted above. Cuba was thereby included in the general requirement of a passport for departure from and entry into the United States.On the same day, the Department of State also issued Public Notice 179, which stated that"Hereafter. United States passports shall not be valid for travel to or in Cuba unless specifically endorsed for such travel under the authority of the Secretary of State. . . ."26 Fed.Reg. Page 385 U. S. 479 492. It simultaneously issued a press release announcing that:". . . in view of the U.S. Government's inability, following the break in diplomatic relations between the United States and Cuba, to extend normal protective services to Americans visiting Cuba, U.S. citizens desiring to go to Cuba must until further notice obtain passports specifically endorsed by the Department of State for such travel. All outstanding passports . . . are being declared invalid for travel to Cuba unless specifically endorsed for such travel. . . . These actions have been taken in conformity with the Department's normal practice of limiting travel to those countries with which the United States does not maintain diplomatic relations. [Footnote 3]"(Italics added.)In Zemel v. Rusk, 381 U. S. 1 (1965), the petitioner sought a declaratory judgment that the Secretary of State does not have statutory authorization to impose area restrictions on travel; that, if the statute were construed to authorize the Secretary to do so, it would be an impermissible delegation of power; and that, in any event, the exercise of the power to restrict travel denied to petitioner his rights under the First and Fifth Amendments. This Court rejected petitioner's claims and sustained the Secretary's statutory power to refuse to validate passports for travel to Cuba. It found authority for area restrictions in the general passport authority vested in the Secretary of State by the 1926 Act, relying upon the successive "imposition of area restrictions during both times of war and periods of peace" before and after the enactment of the Act of 1926. 381 U.S. at Page 385 U. S. 480 381 U. S. 8-9. The Court specifically declined the Solicitor General's invitation to rule also that "travel in violation of an area restriction imposed on an otherwise valid passport is unlawful under the 1952 Act." Id. at 381 U. S. 12. [Footnote 4]We now confront that question. Section 215(b) is a criminal statute. It must therefore be narrowly construed. United States v. Wiltberger, 5 Wheat. 76, 18 U. S. 95-96 (1820) (Marshall, C.J.). Appellees urge that § 215(b) must be read as a "border control" statute, requiring only that a citizen may not "depart from or enter" the United States without "a valid passport." On this basis, they argue, appellees did not conspire to violate the statute, since all of those who went to Cuba departed and reentered the United States bearing valid passports. Only if, as the Government urges, § 215(b) can be given a broader meaning so as to encompass specific destination control -- only if it is read as requiring the traveler to bear "a passport endorsed as valid for travel to the country for which he departs or from which he returns" -- would appellees be guilty of any violation.We begin with the fact, conceded by the Government, that"Section 215(b) does not, in so many words, prohibit violations of area restrictions; it speaks, as the district court noted in the Laub case . . . in the language of 'border control statutes regulating departure from and entry into the United States.'"Brief for the United States, p. 11. Nevertheless, the Government requests us to sustain this criminal prosecution and reverse the District Court on the ground that somehow, "the text is broad enough to encompass departures for geographically restricted areas. . . ." Ibid. We conclude, however, that in this criminal proceeding the statute cannot be applied in this fashion. Even if ingenuity were able to find concealed in the text a basis for this Page 385 U. S. 481 criminal prosecution, factors which we must take into account, drawn from the history of the statute, would preclude such a reading.Preliminarily, it is essential to recall the nature and function of the passport. A passport is a document identifying a citizen, in effect requesting foreign powers to allow the bearer to enter and to pass freely and safely, recognizing the right of the bearer to the protection and good offices of American diplomatic and consular officers. See Urtetiqui v. D'Arcy, 9 Pet. 692, 34 U. S. 699 (1835); Kent v. Dulles, 357 U. S. 116, 357 U. S. 120-121 (1958); 3 Hackworth, Digest of International Law 435 (1942). 8 U.S.C. § 1101(a)(30).As this Court has observed, "The right to travel is a part of the liberty' of which the citizen cannot be deprived without due process of law. . . ." Kent v. Dulles, supra, 357 U.S. at 357 U. S. 125. See Aptheker v. Secretary of State, 378 U. S. 500, 378 U. S. 517 (1964); Zemel v. Rusk, 381 U. S. 1 (1965).Under § 215(b) and its predecessor statutes, Congress authorized the requirement that a citizen possess a passport for departure from and entry into the United States, [Footnote 5] and there is no doubt that with the adoption and promulgation of the "Excluding Cuba" regulation, a passport was required for departure from this country for Cuba and for entry into this country from Cuba. Departure for Cuba or entry from Cuba without a passport would be a violation of § 215(b), exposing the traveler to the criminal penalties provided in that section. But it does not follow that travel to Cuba with a passport which is not specifically validated for that country is a criminal offense. Violation of the "area restriction" -- "invalidating" passports for travel in or to Page 385 U. S. 482 Cuba and requiring specific validation of passports if they are to be valid for travel to or in Cuba -- is quite a different matter from violation of the requirement of § 215(b) and the regulations thereunder that a citizen bear a "valid passport" for departure from or entry into the United States.The area restriction applicable to Cuba was promulgated by a "Public Notice" and a press release, supra, pp. 385 U. S. 478-479, neither of which referred to § 215(b) or to criminal sanctions. On the contrary, the only reference to the statutory base of the announcement appears in the "Public Notice," and this is a reference to the nonpenal 1926 Act and the Executive Order adopted thereunder in 1938. [Footnote 6] These merely authorize the Secretary of State to impose area restrictions incidental to his general powers with respect to passports. Zemel v. Rusk, supra. They do not purport to make travel to the designated area unlawful.The press release issued by the Department of State at the time expressly explained the action as being "in view of the U.S. Government's inability . . . to extend normal protective services to Americans visiting Cuba." It explained that the action was taken in conformity with the Department's "normal practice" of limiting travel to countries with which we do not have diplomatic relations. [Footnote 7] That "normal practice," as will be discussed, has not included criminal sanctions. In short, the relevant State Department promulgations are not Page 385 U. S. 483 only devoid of a suggestion that travel to Cuba without a specially validated passport is prohibited, or that such travel would be criminal conduct, but they also contain positive suggestions that the purpose and effect of the restriction were merely to make clear that the passport was not to be regarded by the traveler in Cuba as a voucher on the protective services normally afforded by the State Department.This was in keeping with the unbroken tenor of State Department pronouncements on area restrictions. Prior to enactment of § 215(b) on June 27, 1952, area travel restrictions were proclaimed on five occasions while the 1918 and 1941 Acts were in effect (1918-1921 and 1941-1953). [Footnote 8] These were the predecessors of § 215(b), and they similarly specified criminal sanctions. [Footnote 9] But in each of the five instances, the area restrictions were devoid of any suggestion that they were related to the 1918 or 1941 Acts or were intended to invoke criminal penalties if they were disregarded. They were cast exclusively in civil terms, relating to the State Department's "safe passage" functions. [Footnote 10] In two of these instances, the Department of State specifically emphasized the civil, Page 385 U. S. 484 nonprohibitory nature of the restrictions. [Footnote 11] For example, in 1952, the State Department issued area restrictions with respect to Eastern European countries, China, and the Soviet Union. The Department's press release emphasized that the "invalidation" of passports for travel to those areas "in no way forbids American travel to those areas." [Footnote 12]Since enactment of § 215(b), the State Department has announced area travel restrictions upon three occasions in addition to Cuba. [Footnote 13] Again, although § 215(b) was fully operative, none of these declarations purported to be issued under that section or referred to criminal sanctions. Each of them, like the Cuba regulation, sounded in terms of withdrawal of the safe passage services of the State Department. [Footnote 14]In 1957, the Senate Foreign Relations Committee asked the Department: "What does it mean when a passport is stamped not valid to go to country X'?" After three months, the Department sent its official reply. It stated that this stamping of a passport"means that if the bearer enters country X, he cannot be assured of the protection of the United States. . . . [but it] does not necessarily mean that, if the bearer travels to country X, he will be Page 385 U. S. 485 violating the criminal law. [Footnote 15]"(Italics added.) Similarly, in hearings before another Senate Committee, a Department official explained that when a passport is marked "invalid" for travel to stated countries, this means that"this Government is not sponsoring the entry of the individual into those countries, and does not give him permission to go in there under the protection of this Government. [Footnote 16]"Although Department records show that approximately 600 persons have violated area travel restrictions since the enactment of § 215(b), [Footnote 17] the present prosecutions are the only attempts to convict persons for alleged area transgressions. [Footnote 18]Until these indictments, in fact, the State Department had consistently taken the position that there was no statute which imposed or authorized such prohibition. In the 1957 hearings, referred to above, the Acting Director of the Bureau of Security and Consular Affairs, Department of State, testified that he knew of no statute providing a penalty for going to a country covered by an area restriction without a passport (as distinguished from Page 385 U. S. 486 departing or entering the United States). [Footnote 19] The Government, as well as others, has repeatedly called to the attention of the Congress the need for consideration of legislation specifically making it a criminal offense for any citizen to travel to a country as to which an area restriction is in effect, [Footnote 20] but no such legislation was enacted. [Footnote 21]In view of this overwhelming evidence that § 215(b) does not authorize area restrictions, we agree with the District Court that the indictment herein does not allege a crime. If there is a gap in the law, the right and the duty, if any, to fill it do not devolve upon the courts. Page 385 U. S. 487 The area travel restriction, requiring special validation of passports for travel to Cuba, was a valid civil regulation under the 1926 Act. Zemel v. Rusk, supra. But it was not, and was not intended or represented to be, an exercise of authority under § 215(b), which provides the basis of the criminal charge in this case.Crimes are not to be created by inference. They may not be constructed nunc pro tunc. Ordinarily, citizens may not be punished for actions undertaken in good faith reliance upon authoritative assurance that punishment will not attach. As this Court said in Raley v. Ohio, 360 U. S. 423, 360 U. S. 438, we may not convict "a citizen for exercising a privilege which the State clearly had told him was available to him." As Raley emphasized, criminal sanctions are not supportable if they are to be imposed under "vague and undefined" commands (citing Lanzetta v. New Jersey, 306 U. S. 451 (1939)); or if they are "inexplicably contradictory" (citing United States v. Cardiff, 344 U. S. 174 (1952)); and certainly not if the Government's conduct constitutes "active misleading" (citing Johnson v. United States, 318 U. S. 189, 318 U. S. 197 (1943)).In view of our decision that appellees were charged with conspiracy to violate a nonexistent criminal prohibition, we need not consider other issues which the case presents.Accordingly, the judgment of the District Court isAffirmed

U.S. Supreme CourtUnited States v. Laub, 385 U.S. 475 (1967)United States v. LaubNo. 176Argued November 16, 1966Decided January 10, 1967385 U.S. 475SyllabusAppellees were indicted for conspiring to violate § 215(b) of the Immigration and Nationality Act of 1952 by recruiting and arranging the travel to Cuba of 58 United States citizens whose passports, although otherwise valid, were not specifically endorsed for travel to Cuba. Section 215(b) provides that, during wartime or a National emergency, and when the President finds and proclaims that such restrictions are necessary in the national interest,"it shall . . . be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport."The required finding and proclamation were made on January 17, 1953, and valid passports were thereafter required of United States citizens except when traveling to or from areas exempted by State Department regulations. After diplomatic relations with Cuba were severed on January 3, 1961, a State Department regulation excluded Cuba from Western Hemisphere countries exempted from the passport requirement. On the same day, the Department issued a Public Notice and a press release, declaring outstanding passports invalid for travel to Cuba unless endorsed therefor. Thereafter, appellees allegedly engaged in the charged conspiracy. The District Court dismissed the indictment for failure to state an offense of conspiracy to violate § 215(b). A direct appeal was taken to this Court.Held: Area restrictions upon the use of an otherwise valid passport are not criminally enforceable under § 215(b). Pp. 385 U. S. 479-487.(a) "Section 215(b) is a criminal statute. It must therefore be narrowly construed. United States v. Wiltberger, 5 Wheat. 76, 18 U. S. 95-96, 18 U. S. 105 (1820) (Marshall, C. J.)." P. 385 U. S. 480.(b) As the Government concedes, "Section 215(b) does not, in so many words, prohibit violations of area restrictions. . . ." P. 385 U. S. 480.(c) "The right to travel is a part of the liberty' of which the citizen cannot be deprived without due process of law. . . ." Kent v. Dulles, 357 U. S. 116, 357 U. S. 125 (1958). P. 385 U. S. 481. Page 385 U. S. 476(d) "There is no doubt that, with the adoption and promulgation of the Excluding Cuba' regulation, a passport was required for departure from this country for Cuba and for entry into this country from Cuba. Departure for Cuba or entry from Cuba without a passport would be a violation of § 215(b). . . . But it does not follow that travel to Cuba with a passport which is not specifically validated for that country is a criminal offense." P. 385 U. S. 481.(e) Neither the State Department's Public Notice nor its press release referred to § 215(b) or to criminal sanctions. "On the contrary, the only reference to the statutory base of the announcement . . . is a reference to the nonpenal 1926 Act . . . [which authorizes] the Secretary of State to impose area restrictions. . . ." P. 385 U. S. 482.(f) The "unbroken tenor of State Department pronouncements on area restrictions," has cast them "exclusively in civil terms, relating to the State Department's safe passage' functions." P. 385 U. S. 483.(g) "Until these indictments . . . , the State Department had consistently taken the position that there was no statute which imposed or authorized . . . prohibition" of travel in violation of area restrictions. P. 385 U. S. 485.(h) "The area travel restriction, requiring special validation of passports for travel to Cuba, was a valid civil regulation . . . , [b]ut it was not, and was not intended or represented to be, an exercise of authority under § 215(b). . . ." P. 385 U. S. 487.253 F. Supp. 433, affirmed.

1997_96-1470

§ 602(a) unambiguously states that the prohibited importation is an infringement "under [§ ]106," thereby identifying § 602 violations as a species of § 106 violations. More important is the fact that the § 106 rights are subject to all of the provisions of "[§§ ]107 through 120." If § 602(a) functioned independently, none of those sections would limit its coverage. pp. 149-151.(e) The Court finds unpersuasive the Solicitor General's argument that "importation" describes an act that is not protected by § 109(a)'s authorization to a subsequent owner "to sell or otherwise dispose of the possession of" a copy. An ordinary interpretation of that language includes the right to ship the copy to another person in another country. More important, the Solicitor General's cramped reading is at odds with § 109(a)'s necessarily broad reach. The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution. There is no reason to assume that Congress intended § 109(a) to limit the doctrine's scope. Pp. 151-152.(f) The wisdom of protecting domestic copyright owners from the unauthorized importation of validly copyrighted copies of their works, and the fact that the Executive Branch has recently entered into at least five international trade agreements apparently intended to do just that, are irrelevant to a proper interpretation of the Act. pp. 153-154.98 F.3d 1109, reversed.STEVENS, J., delivered the opinion for a unanimous Court. GINSBURG, J., filed a concurring opinion, post, p. 154.Allen R. Snyder argued the cause for petitioner. With him on the briefs were Jonathan S. Franklin, WilliamRaymond H. Goettsch argued the cause and filed a brief for respondent.Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Waxman, Assistant Attorneys General Hunger and Klein, Patricia A. Millett, Michael Jay Singer, and Irene M. So let. **Briefs of amici curiae urging reversal were filed for the American Free Trade Association by Gilbert Lee Sandler and Jorge Espinosa; for Cosco Companies, Inc., et al. by Michael D. Sandler, Peter J. Kadzik, Rich-138JUSTICE STEVENS delivered the opinion of the Court. Section 106(3) of the Copyright Act of 1976 (Act), 17 U. S. C. § 106(3), gives the owner of a copyright the exclusive right to distribute copies of a copyrighted work. That exclusive right is expressly limited, however, by the provisions of §§ 107 through 120. Section 602(a) gives the copyright owner the right to prohibit the unauthorized importation of copies. The question presented by this case is whether the right granted by § 602(a) is also limited by §§ 107 through 120. More narrowly, the question is whether the "first sale" doctrine endorsed in § 109(a) is applicable to imported copies.IRespondent, L'anza Research International, Inc. (L'anza), is a California corporation engaged in the business of manufacturing and selling shampoos, conditioners, and other hair care products. L'anza has copyrighted the labels that are affixed to those products. In the United States, L'anza sells exclusively to domestic distributors who have agreed to resell within limited geographic areas and then only to authorized retailers such as barber shops, beauty salons, and professional hair care colleges. Uanza has found that the American "public is generally unwilling to pay the price charged for high quality products, such as L'anza's products, when they are sold along with the less expensive lower quality products that are generally carried by supermarkets andard Kelly, and Robert J. Verdisco; and for Jan-Bell Marketing, Inc., by Michael J. Gaertner.Briefs of amici curiae urging affirmance were filed for the American Intellectual Property Law Association by Arthur J. Levine and John N O'Shea; for the Beauty and Barber Supply Institute Inc. et al. by Deborah M. Lodge; for the National Consumers League et al. by Charles E. Buffon, Caroline M. Brown, Jan S. Amundson, Quentin Riegel, and Daniel F. O'Keefe, Jr.; for the Recording Industry Association of America et al. by Theodore B. Olson and Preeta D. Bansal; and for Swarovski America Limited by Werner Kronstein.139drug stores." App. 54 (declaration of Robert Hall). Uanza promotes the domestic sales of its products with extensive advertising in various trade magazines and at point of sale, and by providing special training to authorized retailers.L'anza also sells its products in foreign markets. In those markets, however, it does not engage in comparable advertising or promotion; its prices to foreign distributors are 35% to 40% lower than the prices charged to domestic distributors. In 1992 and 1993, L'anza's distributor in the United Kingdom arranged the sale of three shipments to a distributor in Malta; 1 each shipment contained several tons of L'anza products with copyrighted labels affixed.2 The record does not establish whether the initial purchaser was the distributor in the United Kingdom or the distributor in Malta, or whether title passed when the goods were delivered to the carrier or when they arrived at their destination, but it is undisputed that the goods were manufactured by L'anza and first sold by Uanza to a foreign purchaser.It is also undisputed that the goods found their way back to the United States without the permission of L'anza and were sold in California by unauthorized retailers who had purchased them at discounted prices from Quality King Distributors, Inc. (petitioner). There is some uncertainty about the identity of the actual importer, but for the purpose of our decision we assume that petitioner bought all three shipments from the Malta distributor, imported them, and then resold them to retailers who were not in L'anza's authorized chain of distribution.After determining the source of the unauthorized sales, L'anza brought suit against petitioner and several other defendants.3 The complaint alleged that the importation and1 See App. 64 (declaration of Robert De Lanza). 2 See id., at 70-83.3 Uanza's claims against the retailer defendants were settled. The Malta distributor apparently never appeared in this action and a default judgment was entered against it.140subsequent distribution of those products bearing copyrighted labels violated L'anza's "exclusive rights under 17 U. S. C. §§ 106, 501 and 602 to reproduce and distribute the copyrighted material in the United States." App. 32. The District Court rejected petitioner's defense based on the "first sale" doctrine recognized by § 109 and entered summary judgment in favor of L'anza. Based largely on its conclusion that § 602 would be "meaningless" if § 109 provided a defense in a case of this kind, the Court of Appeals affirmed. 98 F.3d 1109, 1114 (CA9 1996). Because its decision created a conflict with the Third Circuit, see Sebastian Int'Z, Inc. v. Consumer Contacts (PTY) Ltd., 847 F.2d 1093 (1988), we granted the petition for certiorari. 520 U. S. 1250 (1997).IIThis is an unusual copyright case because L'anza does not claim that anyone has made unauthorized copies of its copyrighted labels. Instead, Uanza is primarily interested in protecting the integrity of its method of marketing the products to which the labels are affixed. Although the labels themselves have only a limited creative component, our interpretation of the relevant statutory provisions would apply equally to a case involving more familiar copyrighted materials such as sound recordings or books. Indeed, we first endorsed the first sale doctrine in a case involving a claim by a publisher that the resale of its books at discounted prices infringed its copyright on the books. Bobbs-Merrill Co. v. Straus, 210 U. S. 339 (1908).4In that case, the publisher, Bobbs-Merrill, had inserted a notice in its books that any retail sale at a price under4 The doctrine had been consistently applied by other federal courts in earlier cases. See Kipling v. G. P. Putnam's Sons, 120 F.6d 1, 634 (CA2 1903); Doan v. American Book Co., 105 F.7d 2, 776 (CA7 1901); Harrison v. Maynard, Merrill & Co., 61 F.6d 9, 691 (CA2 1894); Bobbs-Merrill Co. v. Snellenburg, 131 F.5d 0, 532 (ED Pa. 1904); Clemens v. Estes, 22 F.8d 9, 900 (Mass. 1885); Stowe v. Thomas, 23 F. Cas. 201, 206-207 (ED Pa. 1853).141$1 would constitute an infringement of its copyright. The defendants, who owned Macy's department store, disregarded the notice and sold the books at a lower price without Bobbs-Merrill's consent. We held that the exclusive statutory right to "vend" 5 applied only to the first sale of the copyrighted work:"What does the statute mean in granting 'the sole right of vending the same'? Was it intended to create a right which would permit the holder of the copyright to fasten, by notice in a book or upon one of the articles mentioned within the statute, a restriction upon the subsequent alienation of the subject-matter of copyright after the owner had parted with the title to one who had acquired full dominion over it and had given a satisfactory price for it? It is not denied that one who has sold a copyrighted article, without restriction, has parted with all right to control the sale of it. The purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it."In this case the stipulated facts show that the books sold by the appellant were sold at wholesale, and purchased by those who made no agreement as to the control of future sales of the book, and took upon themselves no obligation to enforce the notice printed in the book, undertaking to restrict retail sales to a price of one dollar per copy." Id., at 349-350.The statute in force when Bobbs-Merrill was decided provided that the copyright owner had the exclusive right to "vend" the copyrighted work. 6 Congress subsequently cod-5 In 1908, when Bobbs-Merrill was decided, the copyright statute provided that copyright owners had "the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending" their copyrighted works. Copyright Act of 1891, § 4952, 26 Stat. 1107 (emphasis added).6 See n. 5, supra.142ified our holding in Bobbs-Merrill that the exclusive right to "vend" was limited to first sales of the work.7 Under the 1976 Act, the comparable exclusive right granted in 17 U. S. C. § 106(3) is the right "to distribute copies ... by sale or other transfer of ownership." 8 The comparable limitation on that right is provided not by judicial interpretation, but by an express statutory provision. Section 109(a) provides:"Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord .... " 97 Congress codified the first sale doctrine in § 41 of the Copyright Act of 1909, ch. 320, 35 Stat. 1084, and again in §27 of the 1947 Act, ch. 391, 61 Stat. 660.8The full text of § 106 reads as follows:"§ 106. Exclusive rights in copyrighted works"Subject to sections 107 through 120, the owner of copyright under thistitle has the exclusive rights to do and to authorize any of the following: "(1) to reproduce the copyrighted work in copies or phonorecords;"(2) to prepare derivative works based upon the copyrighted work;"(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;"(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;"(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and"(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission." 17 U. S. C. § 106 (1994 ed., Supp. I).9The comparable section in the 1909 and 1947 Acts provided that "nothing in this Act shall be deemed to forbid, prevent, or restrict the transfer143The Bobbs-Merrill opinion emphasized the critical distinction between statutory rights and contract rights.10 In this case, L'anza relies on the terms of its contracts with its domestic distributors to limit their sales to authorized retail outlets. Because the basic holding in Bobbs-Merrill is now codified in § l09(a) of the Act, and because those domestic distributors are owners of the products that they purchased from Uanza (the labels of which were "lawfully made under this title"), L'anza does not, and could not, claim that the statute would enable Uanza to treat unauthorized resales by its domestic distributors as an infringement of its exclusive right to distribute copies of its labels. Uanza does claim, however, that contractual provisions are inadequate to protect it from the actions of foreign distributors who may resell L'anza's products to American vendors unable to buy from L'anza's domestic distributors, and that § 602(a) of the Act, properly construed, prohibits such unauthorized competition. To evaluate that submission, we must, of course, consider the text of § 602(a).IIIThe most relevant portion of § 602(a) provides:"Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclu-of any copy of a copyrighted work the possession of which has been lawfully obtained." Copyright Act of 1909, ch. 320, § 41, 35 Stat. 1084; see also Copyright Act of 1947, ch. 391, §27, 61 Stat. 660. It is noteworthy that § 109(a) of the 1978 Act does not apply to "any copy"; it applies only to a copy that was "lawfully made under this title."10 "We do not think the statute can be given such a construction, and it is to be remembered that this is purely a question of statutory construction. There is no claim in this case of contract limitation, nor license agreement controlling the subsequent sales of the book." Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 350 (1908).144sive right to distribute copies or phonorecords under section 106, actionable under section 501. ... " 11It is significant that this provision does not categorically prohibit the unauthorized importation of copyrighted materials. Instead, it provides that such importation is an infringement of the exclusive right to distribute copies "under section 106." Like the exclusive right to "vend" that was construed in Bobbs-Merrill, the exclusive right to distribute is a limited right. The introductory language in § 106 expressly states that all of the exclusive rights granted by that section-including, of course, the distribution right granted by subsection (3)-are limited by the provisions of §§ 107 through 120.12 One of those limitations, as we have noted, is provided by the terms of § 109(a), which expressly permit the owner of a lawfully made copy to sell that copy "[n]otwithstanding the provisions of section 106(3)." 1311 The remainder of § 602(a) reads as follows:"This subsection does not apply to-"(1) importation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use;"(2) importation, for the private use of the importer and not for distribution, by any person with respect to no more than one copy or phonorecord of anyone work at anyone time, or by any person arriving from outside the United States with respect to copies or phonorecords forming part of such person's personal baggage; or"(3) importation by or for an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival purposes, and no more than five copies or phonorecords of any other work for its library lending or archival purposes, unless the importation of such copies or phonorecords is part of an activity consisting of systematic reproduction or distribution, engaged in by such organization in violation of the provisions of section 108(g)(2)."12 See n. 8, supra.13 See text accompanying n. 9, supra.145After the first sale of a copyrighted item "lawfully made under this title," any subsequent purchaser, whether from a domestic or from a foreign reseller, is obviously an "owner" of that item. Read literally, § 109(a) unambiguously states that such an owner "is entitled, without the authority of the copyright owner, to sell" that item. Moreover, since § 602(a) merely provides that unauthorized importation is an infringement of an exclusive right "under section 106," and since that limited right does not encompass resales by lawful owners, the literal text of § 602(a) is simply inapplicable to both domestic and foreign owners of L'anza's products who decide to import them and resell them in the United States.14Notwithstanding the clarity of the text of §§ 106(3), 109(a), and 602(a), L'anza argues that the language of the Act supports a construction of the right granted by § 602(a) as "distinct from the right under Section 106(3) standing alone," and thus not subject to § 109(a). Brief for Respondent 15. Otherwise, Uanza argues, both the § 602(a) right itself and its exceptions 15 would be superfluous. Moreover, supported by various amici curiae, including the Solicitor General of the United States, L'anza contends that its construction is supported by important policy considerations. We consider these arguments separately.IVL'anza advances two primary arguments based on the text of the Act: (1) that § 602(a), and particularly its three exceptions, are superfluous if limited by the first sale doctrine; and (2) that the text of § 501 defining an "infringer" refers14 Despite Uanza's contention to the contrary, see Brief for Respondent 26-27, the owner of goods lawfully made under the Act is entitled to the protection of the first sale doctrine in an action in a United States court even if the first sale occurred abroad. Such protection does not require the extraterritorial application of the Act any more than § 602(a)'s "acquired abroad" language does.15 See n. 11, supra.146separately to violations of § 106, on the one hand, and to imports in violation of § 602. The short answer to both of these arguments is that neither adequately explains why the words "under section 106" appear in § 602(a). The Solicitor General makes an additional textual argument: he contends that the word "importation" in § 602(a) describes an act that is not protected by the language in § 109(a) authorizing a subsequent owner "to sell or otherwise dispose of the possession of" a copy. Each of these arguments merits separate comment.The Coverage of § 602(a)Prior to the enactment of § 602(a), the Act already prohibited the importation of "piratical," or unauthorized, copies.16 Moreover, that earlier prohibition is retained in § 602(b) of the present ActP L'anza therefore argues (as do the Solicitor General and other amici curiae) that § 602(a) is superfluous unless it covers nonpiratical ("lawfully made") copies sold by the copyright owner, because importation nearly always implies a first sale. There are several flaws in this argument.First, even if § 602(a) did apply only to piratical copies, it at least would provide the copyright holder with a private remedy against the importer, whereas the enforcement of § 602(b) is vested in the Customs Service.18 Second, because the protection afforded by § 109(a) is available only to the "owner" of a lawfully made copy (or someone authorized by the owner), the first sale doctrine would not provide a de-16 See 17 U. S. C. §§ 106, 107 (1970).17 Section 602(b) provides in relevant part: "In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited .... " The first sale doctrine of § 109(a) does not protect owners of piratical copies, of course, because such copies were not "lawfully made."18 See n. 17, supra.147fense to a § 602(a) action against any nonowner such as a bailee, a licensee, a consignee, or one whose possession of the copy was unlawful.19 Third, § 602(a) applies to a category of copies that are neither piratical nor "lawfully made under this title." That category encompasses copies that were "lawfully made" not under the United States Copyright Act, but instead, under the law of some other country.The category of copies produced lawfully under a foreign copyright was expressly identified in the deliberations that led to the enactment of the 1976 Act. We mention one example of such a comment in 1961 simply to demonstrate that the category is not a merely hypothetical one. In a report to Congress, the Register of Copyrights stated, in part:"When arrangements are made for both a U. S. edition and a foreign edition of the same work, the publishers frequently agree to divide the international markets. The foreign publisher agrees not to sell his edition in the United States, and the U. S. publisher agrees not to sell his edition in certain foreign countries. It has been suggested that the import ban on piratical copies should be extended to bar the importation of the foreign edition in contravention of such an agreement." Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 125-126 (H. R. Judiciary Comm. Print 1961).19 In its opinion in this case, the Court of Appeals quoted a statement by a representative of the music industry expressing the need for protection against the importation of stolen motion picture prints: "We've had a similar situation with respect to motion picture prints, which are sent all over the world-legitimate prints made from the authentic negative. These prints get into illicit hands. They're stolen, and there's no contractual relationship .... Now those are not piratical copies." Copyright Law Revision Part 2: Discussion and Comments on Report of the Register of Copyrights on General Revision of the U. S. Copyright Law, 88th Cong., 1st Sess., 213 (R. R. Judiciary Comm. Print 1963) (statement of Mr. Sargoy), quoted in 98 F.3d 1109, 1116 (CA9 1996).148Even in the absence of a market allocation agreement between, for example, a publisher of the United States edition and a publisher of the British edition of the same work, each such publisher could make lawful copies. If the author of the work gave the exclusive United States distribution rights-enforceable under the Act-to the publisher of the United States edition and the exclusive British distribution rights to the publisher of the British edition,20 however, presumably only those made by the publisher of the United States edition would be "lawfully made under this title" within the meaning of § 109(a). The first sale doctrine would not provide the publisher of the British edition who decided to sell in the American market with a defense to an action under § 602(a) (or, for that matter, to an action under § 106(3), if there was a distribution of the copies).The argument that the statutory exceptions to § 602(a) are superfluous if the first sale doctrine is applicable rests on the assumption that the coverage of that section is coextensive with the coverage of § 109(a). But since it is, in fact, broader because it encompasses copies that are not subject to the first sale doctrine-e. g., copies that are lawfully made under the law of another country-the exceptions do protect the traveler who may have made an isolated purchase of a copy of a work that could not be imported in bulk for purposes of resale. As we read the Act, although both the first sale doctrine embodied in § 109(a) and the exceptions in § 602(a) may20 A participant in a 1964 panel discussion expressed concern about this particular situation. Copyright Law Revision Part 4: Further Discussion and Comments on Preliminary Draft for Revised U. S. Copyright Law, 88th Cong., 2d Sess., 119 (H. R. Judiciary Comm. Print 1964) (statement of Mrs. Pilpel) ("For example, if someone were to import a copy of the British edition of an American book and the author had transferred exclusive United States and Canadian rights to an American publisher, would that British edition be in violation so that this would constitute an infringement under this section?"); see also id., at 209 (statement of Mr. Manges) (describing similar situation as "a troublesome problem that confronts U. S. book publishers frequently").149be applicable in some situations, the former does not subsume the latter; those provisions retain significant independent meaning.Section 501's Separate References to §§ 106 and 602The text of § 501 does lend support to L'anza's submission.In relevant part, it provides:"(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be .... "The use of the words "or who imports," rather than words such as "including one who imports," is more consistent with an interpretation that a violation of § 602 is distinct from a violation of § 106 (and thus not subject to the first sale doctrine set out in § 109(a)) than with the view that it is a species of such a violation. Nevertheless, the force of that inference is outweighed by other provisions in the statutory text.Most directly relevant is the fact that the text of § 602(a) itself unambiguously states that the prohibited importation is an infringement of the exclusive distribution right "under section 106, actionable under section 501." Unlike that phrase, which identifies § 602 violations as a species of § 106 violations, the text of § 106A, which is also cross-referenced in § 501, uses starkly different language. It states that the author's right protected by § 106A is "independent of the exclusive rights provided in Section 106." The contrast between the relevant language in § 602 and that in § 106A strongly implies that only the latter describes an independent right.2121 The strength of the implication created by the relevant language in § 106A is not diminished by the fact that Congress enacted § 106A more150Of even greater importance is the fact that the § 106 rights are subject not only to the first sale defense in § 109(a), but also to all of the other provisions of "sections 107 through 120." If § 602(a) functioned independently, none of those sections would limit its coverage. For example, the "fair use" defense embodied in § 10722 would be unavailable to importers if § 602(a) created a separate right not subject to the limitations on the § 106(3) distribution right. Under L'anza's interpretation of the Act, it presumably would be unlawful for a distributor to import copies of a British newspaper that contained a book review quoting excerpts from an Americanrecently than § 602(a), which is part of the Copyright Act of 1976. Section 106A was passed as part of the Visual Artists Rights Act of 1990 in order to protect the moral rights of certain visual artists. Section 106A is analogous to Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works, but its coverage is more limited. See 2 P. Goldstein, Copyright § 5.12, p. 5:225 (2d ed. 1996) (§ 106A encompasses aspects of the moral rights guaranteed by Article 6bis of the Berne Convention, "but effectively gives these rights a narrow subject matter and scope").22 Title 17 U. S. C. § 107 provides as follows:"§ 107. Limitations on exclusive rights: Fair use"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"(2) the nature of the copyrighted work;"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and"(4) the effect of the use upon the potential market for or value of the copyrighted work."The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."151novel protected by a United States copyright.23 Given the importance of the fair use defense to publishers of scholarly works, as well as to publishers of periodicals, it is difficult to believe that Congress intended to impose an absolute ban on the importation of all such works containing any copying of material protected by a United States copyright.In the context of this case, involving copyrighted labels, it seems unlikely that an importer could defend an infringement as a "fair use" of the label. In construing the statute, however, we must remember that its principal purpose was to promote the progress of the "useful Arts," U. S. Const., Art. I, § 8, cl. 8, by rewarding creativity, and its principal function is the protection of original works, rather than ordinary commercial products that use copyrighted material as a marketing aid. It is therefore appropriate to take into account the impact of the denial of the fair use defense for the importer of foreign publications. As applied to such publications, L'anza's construction of § 602 "would merely inhibit access to ideas without any countervailing benefit." Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 450-451 (1984).24Does an importer "sell or otherwise dispose" of copies as those words are used in § 109(a)?Whether viewed from the standpoint of the importer or from that of the copyright holder, the textual argument advanced by the Solicitor General25-that the act of "im-23 The § 602(a) exceptions, which are substantially narrower than § 107, would not permit such importation. See n. 11, supra.24 Uanza's reliance on § 602(a)(3)'s reference to § 108(g)(2), see n. 11, supra, to demonstrate that all of the other limitations set out in §§ 107 through 120-inc1uding the first sale and fair use doctrines-do not apply to imported copies is unavailing for the same reasons.25 See also Brief for Recording Industry Association of America et al. 19-21.152portation" is neither a sale nor a disposal of a copy under § l09(a)-is unpersuasive. Strictly speaking, an importer could, of course, carry merchandise from one country to another without surrendering custody of it. In a typical commercial transaction, however, the shipper transfers "possession, custody, control and title to the products" 26 to a different person, and L'anza assumes that petitioner's importation of the L'anza shipments included such a transfer. An ordinary interpretation of the statement that a person is entitled "to sell or otherwise dispose of the possession" of an item surely includes the right to ship it to another person in another country.More important, the Solicitor General's cramped reading of the text of the statutes is at odds not only with § 602(a)'s more flexible treatment of unauthorized importation as an infringement of the distribution right (even when there is no literal "distribution"), but also with the necessarily broad reach of § l09(a). The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution. As we have recognized, the codification of that doctrine in § l09(a) makes it clear that the doctrine applies only to copies that are "lawfully made under this title," but that was also true of the copies involved in the Bobbs-Merrill case, as well as those involved in the earlier cases applying the doctrine. There is no reason to assume that Congress intended either § l09(a) or the earlier codifications of the doctrine to limit its broad scope.27In sum, we are not persuaded by either L'anza's or the Solicitor General's textual arguments.26 App. 87.27 See, e. g., H. R. Rep. No. 1476, 94th Cong., 2d Sess., 79 (1979) ("Section 109(a) restates and confirms" the first sale doctrine established by prior case law); S. Rep. No. 473, 94th Cong., 1st Sess., 71 (1975) (same).153VThe parties and their amici have debated at length the wisdom or unwisdom of governmental restraints on what is sometimes described as either the "gray market" or the practice of "parallel importation." 28 In K mart Corp. v. Cartier, Inc., 486 U. S. 281 (1988), we used those terms to refer to the importation of foreign-manufactured goods bearing a valid United States trademark without the consent of the trademark holder. Id., at 285-286. We are not at all sure that those terms appropriately describe the consequences of an American manufacturer's decision to limit its promotional efforts to the domestic market and to sell its products abroad at discounted prices that are so low that its foreign distributors can compete in the domestic market.29 But even if they do, whether or not we think it would be wise policy to provide statutory protection for such price discrimination is not a matter that is relevant to our duty to interpret the text of the Copyright Act.Equally irrelevant is the fact that the Executive Branch of the Government has entered into at least five international trade agreements that are apparently intended to protect domestic copyright owners from the unauthorized importation of copies of their works sold in those five countries.30 The earliest of those agreements was made in 1991; none has been ratified by the Senate. Even though they are of course28 Compare, for example, Gorelick & Little, The Case for Parallel Importation, 11 N. C. J. Int'l L. & Comm. Reg. 205 (1986), with Gordon, Gray Market Is Giving Hair-Product Makers Gray Hair, N. Y. Times, July 13, 1997, section 1, p. 28, col. 1.29Presumably Uanza, for example, could have avoided the consequences of that competition either (1) by providing advertising support abroad and charging higher prices, or (2) if it was satisfied to leave the promotion of the product in foreign markets to its foreign distributors, to sell its products abroad under a different name.30 The Solicitor General advises us that such agreements have been made with Cambodia, Trinidad and Tobago, Jamaica, Ecuador, and Sri Lanka.154consistent with the position taken by the Solicitor General in this litigation, they shed no light on the proper interpretation of a statute that was enacted in 1976.31The judgment of the Court of Appeals is reversed.It is so ordered

OCTOBER TERM, 1997SyllabusQUALITY KING DISTRIBUTORS, INC. v. L' ANZA RESEARCH INTERNATIONAL, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 96-1470. Argued December 8, 1997-Decided March 9, 1998Respondent Uanza, a California manufacturer, sells its hair care products in this country exclusively to distributors who have agreed to resell within limited geographic areas and only to authorized retailers. Uanza promotes its domestic sales with extensive advertising and special retailer training. In foreign markets, however, it does not engage in comparable advertising or promotion; its foreign prices are substantially lower than its domestic prices. It appears that after Uanza's United Kingdom distributor arranged for the sale of several tons of Uanza products, affixed with copyrighted labels, to a distributor in Malta, that distributor sold the goods to petitioner, which imported them back into this country without Uanza's permission and then resold them at discounted prices to unauthorized retailers. Uanza filed suit, alleging that petitioner's actions violated Uanza's exclusive rights under the Copyright Act of 1976 (Act), 17 U. S. C. §§ 106, 501, and 602, to reproduce and distribute the copyrighted material in the United States. The District Court rejected petitioner's "first sale" defense under § 109(a) and entered summary judgment for Uanza. Concluding that § 602(a), which gives copyright owners the right to prohibit the unauthorized importation of copies, would be "meaningless" if § 109(a) provided a defense, the Ninth Circuit affirmed.Held: The first sale doctrine endorsed in § 109(a) is applicable to imported copies. Pp. 140-154.(a) In Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 349-350, this Court held that the exclusive right to "vend" under the copyright statute then in force applied only to the first sale of a copyrighted work. Congress subsequently codified Bobbs-Merrill's first sale doctrine in the Act. Section 106(3) gives the copyright holder the exclusive right "to distribute copies ... by sale or other transfer of ownership," but § 109(a) provides: "Notwithstanding ... [§ ]106(3), the owner of a particular copy ... lawfully made under this title ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy .... " Although the first sale doctrine prevents Uanza from treating unauthorized resales by its domestic distributors as an infringement of the exclusive right to distribute, Uanza claims that § 602(a), properly construed, prohibits its foreign distributors from reselling136Syllabusits products to American vendors unable to buy from its domestic distributors. Pp. 140-143.(b) The statutory language clearly demonstrates that the right granted by § 602(a) is subject to § 109(a). Significantly, § 602(a) does not categorically prohibit the unauthorized importation of copyrighted materials, but provides that, with three exceptions, such "[i]mportation ... is an infringement of the exclusive right to distribute ... under [§ ]106 ... " Section 106 in turn expressly states that all of the exclusive rights therein granted-including the distribution right granted by subsection (3)-are limited by §§ 107 through 120. One of those limitations is provided by § 109(a), which expressly permits the owner of a lawfully made copy to sell that copy "[n]otwithstanding the provisions of [§ ]106(3)." After the first sale of a copyrighted item "lawfully made under this title," any subsequent purchaser, whether from a domestic or a foreign reseller, is obviously an "owner" of that item. Read literally, § 109(a) unambiguously states that such an owner "is entitled, without the authority of the copyright owner, to sell" that item. Moreover, since § 602(a) merely provides that unauthorized importation is an infringement of an exclusive right "under [§ ]106," and since that limited right does not encompass resales by lawful owners, § 602(a)'s literal text is simply inapplicable to both domestic and foreign owners of Uanza's products who decide to import and resell them here. Pp. 143-145.(c) The Court rejects Uanza's argument that § 602(a), and particularly its exceptions, are superfluous if limited by the first sale doctrine. The short answer is that this argument does not adequately explain why the words "under [§ ]106" appear in § 602(a). Moreover, there are several flaws in Uanza's reasoning that, because § 602(b) already prohibits the importation of unauthorized or "piratical" copies, § 602(a) must cover nonpiratical ("lawfully made") copies sold by the copyright owner. First, even if § 602(a) applied only to piratical copies, it at least would provide a private remedy against the importer, whereas § 602(b)'s enforcement is vested in the Customs Service. Second, because § 109(a)'s protection is available only to the "owner" of a lawfully made copy, the first sale doctrine would not provide a defense to a § 602(a) action against a nonowner such as a bailee. Third, § 602(a) applies to a category of copies that are neither piratical nor "lawfully made under this title"; those that are "lawfully made" under another country's law. Pp. 145-149.(d) Also rejected is Uanza's argument that because § 501(a) defines an "infringer" as one "who violates ... [§ ]106 ... , or who imports ... in violation of [§ ]602," a violation of the latter type is distinct from one of the former, and thus not subject to § 109(a). This argument's force is outweighed by other statutory considerations, including the fact that137Full Text of Opinion

1959_492

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The question presented is whether a Federal District Court has jurisdiction under 28 U.S.C. § 1346(a)(1), of a suit by a taxpayer for the refund of income tax payments which did not discharge the entire amount of his assessment.This is our second consideration of the case. In the 1957 Term, we decided that full payment of the assessment is a jurisdictional prerequisite to suit, 357 U. S. 357 U.S. 63. Subsequently the Court granted a petition for rehearing. 360 U.S. 922. The case has been exhaustively briefed and ably argued. After giving the problem our most careful attention, we have concluded that our original disposition of the case was correct.Under such circumstances, normally a brief epilogue to the prior opinion would be sufficient to account for our decision. However, because petitioner, in reargument, has placed somewhat greater emphasis upon certain contentions than he had previously, and because our dissenting colleagues have elaborated upon the reasons for their Page 362 U. S. 147 disagreement, we deem it advisable to set forth our reasoning in some detail, even though this necessitates repeating much of what we have already said.THE FACTSThe relevant facts are undisputed and uncomplicated. This litigation had its source in a dispute between petitioner and the Commissioner of Internal Revenue concerning the proper characterization of certain losses which petitioner suffered during 1950. Petitioner reported them as ordinary losses, but the Commissioner treated them as capital losses and levied a deficiency assessment in the amount of $28,908.60, including interest. Petitioner paid $5,058.54 and then filed with the Commissioner a claim for refund of that amount. After the claim was disallowed, petitioner sued for refund in a District Court. The Government moved to dismiss, and the judge decided that the petitioner "should not maintain" the action, because he had not paid the full amount of the assessment. But since there was a conflict among the Courts of Appeals on this jurisdictional question, and since the Tenth Circuit had not yet passed upon it, the judge believed it desirable to determine the merits of the claim. He thereupon concluded that the losses were capital in nature, and entered judgment in favor of the Government. 142 F. Supp. 602. The Court of Appeals for the Tenth Circuit agreed with the district judge upon the jurisdictional issue, and consequently remanded with directions to vacate the judgment and dismiss the complaint. 246 F.2d 929. We granted certiorari because the Courts of Appeals were in conflict with respect to a question which is of considerable importance in the administration of the tax laws. [Footnote 1] Page 362 U. S. 148THE STATUTEThe question raised in this case has not only raised a conflict in the federal decisions, but has also in recent years provoked controversy among legal commentators. [Footnote 2] In view of this divergence of expert opinion, it would be surprising if the words of the statute inexorably dictated but a single reasonable conclusion. Nevertheless, one of the arguments which has been most strenuously urged is that the plain language of the statute precludes, or at the very least strongly militates against, a decision that full payment of the income tax assessment is a jurisdictional condition precedent to maintenance of a refund suit in a District Court. If this were true, presumably we could but recite the statute and enter judgment for petitioner -- though we might be pardoned some perplexity as to how such a simple matter could have caused so much confusion. Regrettably, this facile an approach will not serve.Section 1346(a)(1) provides that the District Courts shall have jurisdiction, concurrent with the Court of Claims, of"(1) Any civil action against the United States for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected Page 362 U. S. 149 without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal revenue laws. . . ."(Emphasis added.)It is clear enough that the phrase "any internal revenue tax" can readily be construed to refer to payment of the entire amount of an assessment. Such an interpretation is suggested by the nature of the income tax, which is "[a] tax . . . imposed for each taxable year," with the "amount of the tax" determined in accordance with prescribed schedules. [Footnote 3] (Emphasis added.) But it is argued that this reading of the statute is foreclosed by the presence in § 1346(a)(1) of the phrase "any sum." This contention appears to be based upon the notion that "any sum" is a catchall which confers jurisdiction to adjudicate suits for refund of part of a tax. A catchall the phrase surely is, but to say this is not to define what it catches. The sweeping role which petitioner assigns these words is based upon a conjunctive reading of "any internal revenue tax," "any penalty," and "any sum." But we believe that the statute more readily lends itself to the disjunctive reading which is suggested by the connective "or." That is, "any sum," instead of being related to "any internal revenue tax" and "any penalty," may refer to amounts which are neither taxes nor penalties. Under this interpretation, the function of the phrase is to permit suit for recovery of items which might not be designated as either "taxes" or "penalties" by Congress or the courts. One obvious example of such a "sum" is interest. And it is significant that many old tax statutes described the amount which was to be assessed under certain circumstances as a "sum" to be added to the tax, simply as a Page 362 U. S. 150 "sum," as a "percentum," or as "costs." [Footnote 4] Such a rendition of the statute, which is supported by precedent, [Footnote 5] frees the phrase "any internal revenue tax" from the qualifications imposed upon it by petitioner and permits it to be given what we regard as its more natural reading -- the full tax. Moreover, this construction, under which each phrase is assigned a distinct meaning, imputes to Congress a surer grammatical touch than does the alternative interpretation, under which the "any sum" phrase completely assimilates the other two. Surely a much clearer statute could have been written to authorize suits for refund of any part of a tax merely by use of the phrase "a tax or any portion thereof," or simply "any sum paid under the internal revenue laws." This Court naturally does not review congressional enactments as a panel of grammarians; but neither do we regard ordinary principles of English prose as irrelevant to a construction of those enactments. Cf. Commissioner v. Acker, 361 U. S. 87.We conclude that the language of § 1346(a)(1) can be more readily construed to require payment of the full tax before suit than to permit suit for recovery of a part Page 362 U. S. 151 payment. But, as we recognized in the prior opinion, the statutory language is not absolutely controlling, and consequently resort must be had to whatever other materials might be relevant. [Footnote 6]LEGISLATIVE HISTORY AND HISTORICAL BACKGROUNDAlthough frequently the legislative history of a statute is the most fruitful source of instruction as to its proper interpretation, in this case, that history is barren of any clue to congressional intent.The precursor of § 1346(a)(1) was § 1310(c) of the Revenue Act of 1921, [Footnote 7] in which the language with which we are here concerned appeared for the first time in a jurisdictional statute. Section 1310(c) had an overt purpose unrelated to the question whether full payment of an assessed tax was a jurisdictional prerequisite to a suit for refund. Prior to 1921, tax refund suits against the United States could be maintained in the District Courts under the authority of the Tucker Act, which had been passed in 1887. [Footnote 8] Where the claim exceeded $10,000, however, such a suit could not be brought, and in such a situation, the taxpayer's remedy in District Court was against the Collector. Page 362 U. S. 152 But, because the Collector had to be sued personally, no District Court action was available if he was deceased. [Footnote 9] The 1921 provision, which was an amendment to the Tucker Act, was explicitly designed to permit taxpayers to sue the United States in the District Courts for sums exceeding $10,000 where the Collector had died. [Footnote 10]The ancestry of the language of § 1346(a)(1) is no more enlightening than is the legislative history of the 1921 provision. This language, which, as we have stated, appeared in substantially its present form in the 1921 amendment, was apparently taken from R.S. § 3226 (1878). But § 3226 was not a jurisdictional statute at all; it simply specified that suits for recovery of taxes, penalties, or sums could not be maintained until after a claim for refund had been submitted to the Commissioner. [Footnote 11]Thus, there is presented a vexing situation -- statutory language which is inconclusive and legislative history which is irrelevant. This, of course, does not necessarily mean that § 1346(a)(1) expresses no congressional intent with respect to the issue before the Court; but it does make that intent uncommonly difficult to divine.It is argued, however, that the puzzle may be solved through consideration of the historical basis of a suit to recover a tax illegally assessed. The argument proceeds as follows: a suit to recover taxes could, before the Tucker Page 362 U. S. 153 Act, be brought only against the Collector. Such a suit was based upon the common law count of assumpsit for money had and received, and the nature of that count requires the inference that a suit for recovery of part payment of a tax could have been maintained. Neither the Tucker Act nor the 1921 amendment indicates an intent to change the nature of the refund action in any pertinent respect. Consequently, there is no warrant for importing into § 1346(a)(1) a full payment requirement.For reasons which will appear later, we believe that the conclusion would not follow even if the premises were clearly sound. But, in addition, we have substantial doubt about the validity of the premises. As we have already indicated, the language of the 1921 amendment does, in fact, tend to indicate a congressional purpose to require full payment as a jurisdictional prerequisite to suit for refund. Moreover, we are not satisfied that the suit against the collector was identical to the common law action of assumpsit for money had and received. One difficulty is that, because of the Act of February 26, 1845, c. 22, 5 Stat. 727, which restored the right of action against the Collector after this Court had held that it had been implicitly eliminated by other legislation, [Footnote 12] the Court no longer regarded the suit as a common law action, but rather as a statutory remedy which, "in its nature, [was] a remedy against the Government." Curtis' Administratrix v. Fiedler, 2 Black 461, 67 U. S. 479. On the other hand, it is true that none of the statutes relating to this type of suit clearly indicate a congressional intention to require full payment of the assessed tax before suit. [Footnote 13] Nevertheless, the opinion of this Court in Cheatham v. United States, 92 U. S. 85, prevents us from accepting the Page 362 U. S. 154 analogy between the statutory action against the Collector and the common law count. In this 1875 opinion, the Court described the remedies available to taxpayers as follows:"So also, in the internal revenue department, the statute which we have copied allows appeals from the assessor to the commissioner of internal revenue; and, if dissatisfied with his decision, on paying the tax, the party can sue the collector; and, if the money was wrongfully exacted, the courts will give him relief by a judgment, which the United States pledges herself to pay.""* * * *" ". . . While a free course of remonstrance and appeal is allowed within the departments before the money is finally exacted, the general government has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. . . . If the compliance with this condition [that appeal must be made to the Commissioner and suit brought within six months of his decision] requires the party aggrieved to pay the money, he must do it. He cannot, after the decision is rendered against him, protract the time within which he can contest that decision in the courts by his own delay in paying the money. It is essential to the honor and orderly conduct of the Government that its taxes should be promptly paid and drawbacks speedily adjusted, and the rule prescribed in this class of cases is neither arbitrary nor unreasonable. . . .""The objecting party can take his appeal. He can, if the decision is delayed beyond twelve months, Page 362 U. S. 155 rest his case on that decision; or he can pay the amount claimed, and commence his suit at any time within that period. So, after the decision, he can pay at once, and commence suit within the six months. . . ."92 U.S. at 92 U. S. 88-89. (Emphasis added.)Reargument has not changed our view that this language reflects an understanding that full payment of the tax was a prerequisite to suit. Of course, as stated in our prior opinion, the Cheatham statement is dictum; but we reiterate that it appears to us to be "carefully considered dictum." 357 U.S. at 357 U. S. 68. Equally important is the fact that the Court was construing the "claim for refund" statute from which, as amended, the language of § 1346(a)(1) was presumably taken. [Footnote 14] Thus, it seems that, in Cheatham, the Supreme Court interpreted this language not only to specify which claims for refund must first be presented for administrative reconsideration, but also to constitute an additional qualification upon the statutory right to sue the Collector. It is true that the version of the provision involved in Cheatham contained only the phrase "any tax." But the phrase "any penalty" and "any sum" were added well before the decision in Cheatham; [Footnote 15] the history of these amendments makes it quite clear that they were not designed to effect any change relevant to the Cheatham rule; [Footnote 16] language in Page 362 U. S. 156 opinions of this Court after Cheatham is consistent with the Cheatham statement; [Footnote 17] and, in any event, as we have indicated, we can see nothing in these additional words which would negate the full payment requirement. Page 362 U. S. 157If this were all the material relevant to a construction of § 1346(a)(1), determination of the issue at bar would be inordinately difficult. Favoring petitioner would be the theory that, in the early nineteenth century, a suit for recovery of part payment of an assessment could be maintained against the Collector, together with the absence of any conclusive evidence that Congress has ever intended to inaugurate a new rule; favoring respondent would be the Cheatham statement and the language of the 1921 statute. There are, however, additional factors which are dispositive.We are not here concerned with a single sentence in an isolated statute, but rather with a jurisdictional provision which is a keystone in a carefully articulated and quite complicated structure of tax laws. From these related statutes, all of which were passed after 1921, it is apparent that Congress has several times acted upon the assumption that § 1346(a)(1) requires full payment before suit. Of course, if the clear purpose of Congress at any time had been to permit suit to recover a part payment, this subsequent legislation would have to be disregarded. But, as we have stated, the evidence pertaining to this intent Page 362 U. S. 158 is extremely weak, and we are convinced that it is entirely too insubstantial to justify destroying the existing harmony of the tax statutes. The laws which we consider especially pertinent are the statute establishing the Board of Tax Appeals (now the Tax Court), the Declaratory Judgment Act and § 7422(e) of the Internal Revenue Code of 1954.THE BOARD OF TAX APPEALSThe Board of Tax Appeals was established by Congress in 1924 to permit taxpayers to secure a determination of tax liability before payment of the deficiency. [Footnote 18] The Government argues that the Congress which passed this 1924 legislation thought full payment of the tax assessed was a condition for bringing suit in a District Court; that Congress believed this sometimes caused hardship; and that Congress set up the Board to alleviate that hardship. Petitioner denies this, and contends that Congress' sole purpose was to enable taxpayers to prevent the Government from collecting taxes by exercise of its power of distraint. [Footnote 19]We believe that the legislative history surrounding both the creation of the Board and the subsequent revisions of the basic statute supports the Government. The House Committee Report, for example, explained the purpose of the bill as follows:"The committee recommends the establishment of a Board of Tax Appeals to which a taxpayer may appeal prior to the payment of an additional assessment of income, excess profits, war profits, or estate taxes. Although a taxpayer may, after payment of Page 362 U. S. 159 his tax, bring suit for the recovery thereof, and thus secure a judicial determination on the questions involved, he cannot, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in nonliquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment. [Footnote 20]"(Emphasis added.)Moreover, throughout the congressional debates are to be found frequent expressions of the principle that payment of the full tax was a precondition to suit: "pay his tax . . . , then . . . file a claim for refund"; "pay the tax, and then sue"; "a review in the courts after payment of the tax"; "he may still seek court review, but he must first pay the tax assessed"; "in order to go to court, he must pay his assessment"; "he must pay it [his assessment] Page 362 U. S. 160 before he can have a trial in court"; "pay the taxes adjudicated against him, and then commence a suit in a court"; "pay the tax . . . , [t]hen . . . sue to get it back"; "paying his tax and bringing his suit"; "first pay his tax, and then sue to get it back"; "take his case to the district court -- conditioned, of course, upon his paying the assessment." [Footnote 21]Petitioner's argument falls under the weight of this evidence. It is true, of course, that the Board of Tax Appeals procedure has the effect of staying collection, [Footnote 22] and it may well be that Congress so provided in order to alleviate hardships caused by the longstanding bar against suits to enjoin the collection of taxes. But it is a considerable leap to the further conclusion that amelioration of the hardship of pre-litigation payment as a jurisdictional requirement was not another important Page 362 U. S. 161 motivation for Congress' action. [Footnote 23] To reconcile the legislative history with this conclusion seems to require the presumption that all the Congressmen who spoke of payment of the assessment before suit as a hardship understood -- without saying -- that suit could be brought for whatever part of the assessment had been paid, but believed that, as a practical matter, hardship would nonetheless arise because the Government would require payment of the balance of the tax by exercising its power of distraint. But if this was, in fact, the view of these legislators, it is indeed extraordinary that they did not say so. [Footnote 24] Page 362 U. S. 162 Moreover, if Congress' only concern was to prevent distraint, it is somewhat difficult to understand why Congress did not simply authorize injunction suits. It is interesting to note in this connection that bills to permit the same type of prepayment litigation in the District Courts as is Page 362 U. S. 163 possible in the Tax Court have been introduced several times, but none has ever been adopted. [Footnote 25]In sum, even assuming that one purpose of Congress in establishing the Board was to permit taxpayers to avoid distraint, it seems evident that another purpose was to furnish a forum where full payment of the assessment would not be a condition precedent to suit. The result is a system in which there is one tribunal for prepayment litigation and another for post-payment litigation, with no room contemplated for a hybrid of the type proposed by petitioner. Page 362 U. S. 164THE DECLARATORY JUDGMENT ACTThe Federal Declaratory Judgment Act of 1934 [Footnote 26] was amended by § 405 of the Revenue Act of 1935 expressly to except disputes "with respect to Federal taxes." [Footnote 27] The Senate Report explained the purpose of the amendment as follows:"Your committee has added an amendment making it clear that the Federal Declaratory Judgments Act of June 14, 1934, has no application to Federal taxes. The application of the Declaratory Judgments Act to taxes would constitute a radical departure from the long continued policy of Congress (as expressed in Rev.Stat. 3224 and other provisions) with respect to the determination, assessment, and collection of Federal taxes. Your committee believes that the orderly and prompt determination and collection of Federal taxes should not be interfered with by a procedure designed to facilitate the settlement of private controversies, and that existing procedure both in the Board of Tax Appeals and the courts affords ample remedies for the correction of tax errors. [Footnote 28]"(Emphasis added.)It is clear enough that one "radical departure" which was averted by the amendment was the potential circumvention of the "pay first and litigate later" rule by way of suits for declaratory judgments in tax cases. [Footnote 29] Petitioner Page 362 U. S. 165 would have us give this Court's imprimatur to precisely the same type of "radical departure," since a suit for recovery of but a part of an assessment would determine the legality of the balance by operation of the principle of collateral estoppel. With respect to this unpaid portion, the taxpayer would be securing what is in effect -- even though not technically -- a declaratory judgment. The frustration of congressional intent which petitioner asks us to endorse could hardly be more glaring, for he has conceded that his argument leads logically to the conclusion that payment of even $1 on a large assessment entitles the taxpayer to sue -- a concession amply warranted by the obvious impracticality of any judicially created jurisdictional standard midway between full payment and any payment.SECTION 7422(e) OF THE 1954 CODEOne distinct possibility which would emerge from a decision in favor of petitioner would be that a taxpayer might be able to split his cause of action, bringing suit for refund of part of the tax in a Federal District Court and litigating in the Tax Court with respect to the remainder. In such a situation, the first decision would, of course, control. Thus, if, for any reason, a litigant would prefer a District Court adjudication, [Footnote 30] he might sue for a small portion of the tax in that tribunal while at the same time protecting the balance from distraint by invoking the protection of the Tax Court procedure. On the other hand, different questions would arise if this device were not employed. For example, would the Government be required to file a compulsory counterclaim for the unpaid Page 362 U. S. 166 balance in District Court under Rule 13 of the Federal Rules of Civil Procedure? If so, which party would have the burden of proof? [Footnote 31]Section 7422(e) of the 1954 Internal Revenue Code makes it apparent that Congress has assumed these problems are nonexistent except in the rare case where the taxpayer brings suit in a District Court and the Commissioner then notifies him of an additional deficiency. Under § 7422(e), such a claimant is given the option of pursuing his suit in the District Court or in the Tax Court, but he cannot litigate in both. Moreover, if he decides to remain in the District Court, the Government may -- but seemingly is not required to -- bring a counterclaim, and if it does, the taxpayer has the burden of proof. [Footnote 32] If we Page 362 U. S. 167 were to overturn the assumption upon which Congress has acted, we would generate upon a broad scale the very problems Congress believed it had solved. [Footnote 33]These, then, are the basic reasons for our decision, and our views would be unaffected by the constancy or inconstancy of administrative practice. However, because the petition for rehearing in this case focused almost exclusively upon a single clause in the prior opinion"there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due,"357 U.S. at 357 U. S. 69 -- we feel obliged to comment upon the material introduced upon reargument. The Page 362 U. S. 168 reargument has, if anything, strengthened, rather than weakened, the substance of this statement, which was directed to the question whether there has been a consistent understanding of the "pay first and litigate later" principle by the interested government agencies and by the bar.So far as appears, Suhr v. United States, 18 F.2d 81, decided by the Third Circuit in 1927, is the earliest case in which a taxpayer in a refund action sought to contest an assessment without having paid the full amount then due. [Footnote 34] In holding that the District Court had no jurisdiction of the action, the Court of Appeals said:"None of the various tax acts provide for recourse to the courts by a taxpayer until he has failed to get relief from the proper administrative body or has paid all the taxes assessed against him. The payment of a part does not confer jurisdiction upon the courts. . . . There is no provision for refund to the taxpayer of any excess payment of any installment or part of his tax, if the whole tax for the year has not been paid."Id. at 83. Page 362 U. S. 169Although the statement by the court might have been dictum, [Footnote 35] it was in accord with substantially contemporaneous statements by Secretary of the Treasury A. W. Mellon, by Under Secretary of the Treasury Garrard B. Winston, by the first Chairman of the Board of Tax Appeals, Charles D. Hamel, and by legal commentators. [Footnote 36] Page 362 U. S. 170There is strong circumstantial evidence that this view of the jurisdiction of the courts was shared by the bar at least until 1940, when the Second Circuit Court of Appeals rejected the Government's position in Coates v. United States, 111 F.2d 609. Out of the many thousands of refund cases litigated in the pre-1940 period -- the Government Page 362 U. S. 171 reports that there have been approximately 40,000 such suits in the past 40 years -- exhaustive research has uncovered only nine suits in which the issue was present, in six of which the Government contested jurisdiction on part payment grounds. [Footnote 37] The Government's failure to Page 362 U. S. 175 raise the issue in the other three is obviously entirely without significance. Considerations of litigation strategy may have been thought to militate against resting upon such a defense in those cases. Moreover, where only nine lawsuits involving a particular issue arise over a period of many decades, the policy of the Executive Department on that issue can hardly be expected to become familiar to every government attorney. But, most important, the number of cases before 1940 in which the issue was present is simply so inconsequential that it reinforces the conclusion of the prior opinion with respect to the uniformity of the pre-1940 belief that full payment had to precede suit.A word should also be said about the argument that requiring taxpayers to pay the full assessments before bringing suits will subject some of them to great hardship. This contention seems to ignore entirely the right of the taxpayer to appeal the deficiency to the Tax Court without paying a cent. [Footnote 38] If he permits his time for filing such an appeal to expire, he can hardly complain that he has been unjustly treated, for he is in precisely the same position as any other person who is barred by a statute of limitations. On the other hand, the Government has a substantial interest in protecting the public purse, an interest which would be substantially impaired if a taxpayer could sue in a District Court without paying his tax in full. It is instructive to note that, as of June 30, 1959, tax cases pending in the Tax Court involved $920,046,748, and refund suits in other courts involved $446,673,640. [Footnote 39] Page 362 U. S. 176 It is quite true that the filing of an appeal to the Tax Court normally precludes the Government from requiring payment of the tax, [Footnote 40] but a decision in petitioner's favor could be expected to throw a great portion of the Tax Court litigation into the District Courts. [Footnote 41] Of course, the Government can collect the tax from a District Court suitor by exercising its power of distraint -- if he does not split his cause of action -- but we cannot believe that compelling resort to this extraordinary procedure is either wise or in accord with congressional intent. Our system of taxation is based upon voluntary assessment and payment, not upon distraint. [Footnote 42] A full payment requirement will promote the smooth functioning of this system; a part payment rule would work at cross-purposes with it. [Footnote 43]In sum, if we were to accept petitioner's argument, we would sacrifice the harmony of our carefully structured twentieth century system of tax litigation, and all that Page 362 U. S. 177 would be achieved would be a supposed harmony of § 1346(a)(1) with what might have been the nineteenth century law had the issue ever been raised. Reargument has but fortified our view that § 1346(a)(1), correctly construed, requires full payment of the assessment before an income tax refund suit can be maintained in a Federal District Court.Affirmed

U.S. Supreme CourtFlora v. United States, 362 U.S. 145 (1960)Flora v. United StatesNo. 492, October Term, 1957Argued May 20, 1958Decided .June 16, 1958Rehearing granted June 22, 1959Reargued November 12, 1959Decided March 21, 1960362 U.S. 145SyllabusUnder 28 U.S.C. § 1346(a)(1), a Federal District Court does not have jurisdiction of an action by a taxpayer for refund of a part payment made by him on an assessment for an alleged deficiency in his income tax. The taxpayer must pay the full amount of the assessment before he may challenge its validity in an action under §1346(a)(1). Flora v. United States, 357 U. S. 63, reaffirmed. Pp. 362 U. S. 146-177.(a) The language of § 1346(a)(1) can more readily be construed to require payment of the full tax before suit than to permit suit for recovery of a part payment. Pp. 362 U. S. 148-151.(b) The legislative history of § 1346(a)(1) is barren of any clue to the congressional intent on this issue; but that section is a jurisdictional provision which is a keystone in a carefully articulated and quite complicated structure of tax laws; since enactment of its precursor in 1921, Congress has several times acted upon the assumption that § 1346(a)(1) requires full payment before suit; and any evidence of a contrary intent is too weak and insubstantial to justify destroying the existing harmony of the tax statutes. Pp. 362 U. S. 151-158.(c) In establishing the Board of Tax Appeals (now the Tax Court), Congress acted upon the assumption that full payment of the tax assessed was a condition precedent for bringing suit for refund in a District Court, and it chose to establish the Board as a different forum where the validity of an assessment could be litigated without prior payment in full. Pp. 362 U. S. 158-163.(d) To permit such a suit in a District Court would be inconsistent with the purpose of § 405 of the Revenue Act of 1935, which amended the Declaratory Judgment Act so as to except disputes "with respect to Federal taxes." Pp. 362 U. S. 164-165.(e) To permit such a suit in a District Court would generate the very problems which Congress believed it had solved by § 7422(e) of the Internal Revenue Code of 1954. Pp. 362 U. S. 165-167.(f) A different conclusion is not required by the administrative practice prior to 1940, nor by a few inconsequential exceptions to Page 362 U. S. 146 the otherwise uniform belief prior to 1940 that full payment had to precede suit in a District Court for refund. Pp. 362 U. S. 167-175.(g) Requiring taxpayers to pay assessments in full before suing in a District Court will not necessarily subject them to undue hardships, since they may appeal to the Tax Court without first paying anything. Pp. 362 U. S. 175-177.246 F.2d 929 affirmed.

1993_93-639

JUSTICE GINSBURG delivered the opinion of the Court. Petitioner Silvia Safille Ibanez, a member of the Florida Bar since 1983, practices law in Winter Haven, Florida. She is also a Certified Public Accountant (CPA), licensed by respondent Florida Board of Accountancy (Board) 1 to "practice public accounting." In addition, she is authorized by the Certified Financial Planner Board of Standards, a private organization, to use the trademarked designation "Certified Financial Planner" (CFP).Ibanez referred to these credentials in her advertising and other communication with the public. She placed CPA and CFP next to her name in her yellow pages listing (under "Attorneys") and on her business card. She also used those designations at the left side of her "Law Offices" stationery. Notwithstanding the apparently truthful nature of her communication-it is undisputed that neither her CPA license nor her CFP certification has been revoked-the Board reprimanded her for engaging in "false, deceptive, and misleading" advertising. Final Order of the Board of Accountancy (May 12, 1992) (hereinafter Final Order), App. 178, 194.The record reveals that the Board has not shouldered the burden it must carry in matters of this order. It has notSydney S. Traum, and Philip D. Brent; for the Certified Financial Planner Board of Standards et al. by Peter E. Zwanzig; and for the Florida Bar by Steven E. Stark and Scott D. Makar.Briefs of amici curiae urging affirmance were filed for the American Institute of Certified Public Accountants by Louis A. Craco, Richard I. Miller, Michael R. Young, and Kelly M. Hnatt; and for the Florida Institute of Certified Public Accountants by Kenneth R. Hart and Steven P. Seymoe.1 The Board of Accountancy, created by the Florida Legislature, Fla.Stat. § 473.303 (1991), is authorized to "adopt all rules necessary to administer" the Public Accountancy Act (chapter 473 of the Florida Statutes). Fla. Stat. §473.304 (Supp. 1992). The Board is responsible for licensing CPA's, see Fla. Stat. §473.308 (1991), and every licensee is subject to the governance of the Act and the rules adopted by the Board. Fla. Stat. §473.304 (Supp. 1992).139demonstrated with sufficient specificity that any member of the public could have been misled by Ibanez' constitutionally protected speech or that any harm could have resulted from allowing that speech to reach the public's eyes. We therefore hold that the Board's decision censuring Ibanez is incompatible with First Amendment restraints on official action.IUnder Florida's Public Accountancy Act, only licensed CPA's may "[a]ttest as an expert in accountancy to the reliability or fairness of presentation of financial information," Fla. Stat. §473.322(1)(c) (1991),2 or use the title "CPA" or other title "tending to indicate that such person holds an active license" under Florida law. §473.322(1)(b). Furthermore, only licensed CPA's may "[p]ractice public accounting." § 473.322(1)(a). "Practicing public accounting" is defined as an "offe[r] to perform ... one or more types of services involving the use of accounting skills, or ... management advisory or consulting services," Fla. Stat. § 473.302(5) (Supp. 1992), made by one who either is, §473.302(5)(a), or "hold[s] himself ... out as," §473.302(5)(b) (emphasis added), a certified public accountant.3The Board learned of Ibanez' use of the designations CPA and CFP when a copy of Ibanez' yellow pages listing was mailed, anonymously, to the Board's offices; it thereupon commenced an investigation and, subsequently, issued a complaint against her. The Board charged Ibanez with (1)2 This "attest" function is more commonly referred to as "auditing."3 Florida's Public Accountancy Act is known as a "Title Act" because, with the exception of the "attest" function, activities performed by CPA's can lawfully be performed by non-CPA's. See Brief for Respondent 1112. The Act contains additional restrictions on the conduct of licensed CPA's. For example, a partnership or corporation cannot "practice public accounting" unless all partners or shareholders are CPA's, Fla. Stat. §473.309 (1991), nor may licensees "engaged in the practice of public accounting" payor accept referral fees, § 473.3205, or accept contingency fees, § 473.319.140"practicing public accounting" in an unlicensed firm, in violation of § 473.3101 of the Public Accountancy Act; 4 (2) using a "specialty designation"-CFp-that had not been approved by the Board, in violation of Board Rule 24.001(1)(g), Fla. Admin. Code § 61Hl-24.001(1)(g) (1994); 5 and (3) appending the CPA designation after her name, thereby "impl[ying] that she abides by the provisions of [the Public Accountancy Act]," in violation of Rule 24.001(1)'s ban on "fraudulent, false, deceptive, or misleading" advertising. Amended Administrative Complaint (filed June 30, 1991), 1 Record 32-35.At the ensuing disciplinary hearing, Ibanez argued that she was practicing law, not "public accounting," and was therefore not subject to the Board's regulatory jurisdiction. Response to Amended Administrative Complaint (filed Aug. 26, 1991), , 25, id., at 108.6 Her use of the CPA and CFP designations, she argued further, constituted "nonmisleading, truthful, commercial speech" for which she could not be sanctioned. , 24, ibid. Prior to the close of proceedings before the hearing officer, the Board dropped the charge that Ibanez was practicing public accounting in an unlicensed firm. Order on Reconsideration (filed Aug. 22, 1991), , 2, id., at 103-104. The hearing officer subsequently found in Ibanez' favor on all counts, and recommended to the Board that,4 Florida Stat. § 473.3101 (Supp. 1994) requires that "[e]ach partnership, corporation, or limited liability company seeking to engage in the practice of public accounting" apply for a license from the Board, and § 473.309 requires that each such partnership or corporation hold a current license.5 Rule 24.001(1) states, in pertinent part, that "[n]o licensee shall disseminate ... any ... advertising which is in any way fraudulent, false, deceptive, or misleading, if it ... (g) [s]tates or implies that the licensee has received formal recognition as a specialist in any aspect of the practice of public accountancy unless ... [the] recognizing agency is approved by the Board." Fla. Admin. Code § 61H1-24.001(1) (1994). The CFP Board of Standards, the "recognizing agency" in regard to Ibanez' CFP designation, has not been approved by the Board.6 Ibanez pointed out that she does not perform the "attest" function in her law practice, and that no service she performs requires a CPA license. See supra, at 139, n. 3.141for want of the requisite proof, all charges against Ibanez be dismissed. Recommended Order (filed Jan. 15, 1992), App.147.The Board rejected the hearing officer's recommendation, and declared Ibanez guilty of "false, deceptive and misleading" advertising. Final Order, id., at 194. The Board reasoned, first, that Ibanez was "practicing public accounting" by virtue of her use of the CPA designation and was thus subject to the Board's disciplinary jurisdiction. Id., at 183. Because Ibanez had insisted that her law practice was outside the Board's regulatory jurisdiction, she had, in the Board's judgment, rendered her use of the CPA designation misleading:"[Ibanez] advertises the fact that she is a CPA, while performing the same 'accounting' activities she performed when she worked for licensed CPA firms, but she does not concede that she is engaged in the practice of public accounting so as to bring herself within the jurisdiction of the Board of Accountancy for any negligence or errors [of which] she may be guilty when delivering her services to her clients."[Ibanez] is unwilling to acquiesce in the requirements of [the Public Accountancy Act] and [the Board's rules] by complying with those requirements. She does not license her firm as a CPA firm; forego certain forms of remuneration denied to individuals who are practicing public accountancy; or limit the ownership of her firm to other CPAs .... [She] has, in effect, told the public that she is subject to the provisions of [the Public Accountancy Act] and the jurisdiction of the Board of Accountancy when she believes and acts as though she is not." Id., at 184-185.Next, the Board addressed Ibanez' use of the CFP designation. On that matter, the Board stated that any designation using the term "certified" to refer to a certifying orga-142nization other than the Board itself (or an organization approved by the Board) "inherently mislead[s] the public into believing that state approval and recognition exists." Id., at 193-194. Ibanez appealed to the District Court of Appeal, First District, which affirmed the Board's final order per curiam without opinion. Id., at 196, judgt. order reported at 621 So. 2d 435 (1993). As a result, Ibanez had no right of review in the Florida Supreme Court. We granted certiorari, 510 U. S. 1067 (1994), and now reverse.II AThe Board correctly acknowledged that Ibanez' use of the CPA and CFP designations was "commercial speech." Final Order, App. 186. Because "disclosure of truthful, relevant information is more likely to make a positive contribution to decisionmaking than is concealment of such information," Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U. S. 91, 108 (1990), only false, deceptive, or misleading commercial speech may be banned. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 638 (1985), citing Friedman v. Rogers, 440 U. S. 1 (1979); see also In re R. M. J., 455 U. S. 191, 203 (1982) ("Truthful advertising related to lawful activities is entitled to the protections of the First Amendment .... Misleading advertising may be prohibited entirely.").Commercial speech that is not false, deceptive, or misleading can be restricted, but only if the State shows that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest.7 Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557, 566 (1980);7"It is well established that '[t]he party seeking to uphold a restriction on commercial speech carries the burden of justifying it.''' Edenfield V. Fane, 507 U. S. 761, 770 (1993), quoting Bolger V. Youngs Drug Products Corp., 463 U. S. 60, 71, n. 20 (1983).143see also id., at 564 (regulation will not be sustained if it "provides only ineffective or remote support for the government's purpose"); Edenfield v. Fane, 507 U. S. 761, 767 (1993) (regulation must advance substantial state interest in a "direct and material way" and be in "reasonable proportion to the interests served"); In re R. M. J., 455 U. S., at 203 (State can regulate commercial speech if it shows that it has "a substantial interest" and that the interference with speech is "in proportion to the interest served").The State's burden is not slight; the "free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful." Zauderer, 471 U. S., at 646. "[M]ere speculation or conjecture" will not suffice; rather the State "must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edenfield, 507 U. S., at 770, 771; see also Zauderer, 471 U. S., at 648-649 (State's "unsupported assertions" insufficient to justify prohibition on attorney advertising; "broad prophylactic rules may not be so lightly justified if the protections afforded commercial speech are to retain their force"). Measured against these standards, the order reprimanding Ibanez cannot stand.BWe turn first to Ibanez' use of the CPA designation in her commercial communications. On that matter, the Board's position is entirely insubstantial. To reiterate, Ibanez holds a currently active CPA license which the Board has never sought to revoke. The Board asserts that her truthful communication is nonetheless misleading because it "[tells] the public that she is subject to the provisions of [the Accountancy Act] and the jurisdiction of the Board of Accountancy when she believes and acts as though she is not." Final Order, App. 185; see also Brief for Respondent 20 ("[T]he use144of the CPA designation ... where the licensee is unwilling to comply with the provisions of the [statute] under which the license was granted, is inherently misleading and may be prohibited.").Ibanez no longer contests the Board's assertion of jurisdiction, see Brief for Petitioner 28 (Ibanez "is, in fact, a licensee subject to the rules of the Board"), and in any event, what she "believes" regarding the reach of the Board's authority is not sanctionable. See Baird v. State Bar of Ariz., 401 U. S. 1, 6 (1971) (First Amendment "prohibits a State from excluding a person from a profession or punishing him solely because ... he holds certain beliefs"). Nor can the Board rest on a bare assertion that Ibanez is "unwilling to comply" with its regulation. To survive constitutional review, the Board must build its case on specific evidence of noncompliance. Ibanez has neither been charged with, nor found guilty of, any professional activity or practice out of compliance with the governing statutory or regulatory standards.8 And as long as Ibanez holds an active CPA license from the Board we cannot imagine how consumers can be misled by her truthful representation to that effect.CThe Board's justifications for disciplining Ibanez for using the CFP designation are scarcely more persuasive. The Board concluded that the words used in the designationparticularly, the word "certified"-so closely resemble "the terms protected by state licensure itself, that their use, when not approved by the Board, inherently mislead[s] the public into believing that state approval and recognition exists." Final Order, App. 193-194. This conclusion is difficult to maintain in light of Peel. We held in Peel that an attorney's use of the designation "Certified Civil Trial Specialist By the8 Notably, the Board itself withdrew the only charge against Ibanez of this kind, viz., the allegation that she practiced public accounting in an unlicensed firm. See supra, at 140.145National Board of Trial Advocacy" was neither actually nor inherently misleading. See 496 U. S., at 106 (rejecting contention that use of National Board of Trial Advocacy certification on attorney's letterhead was "actually misleading"); id., at 110 ("State may not ... completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as NBTA"); id., at 111 (Marshall, J., joined by Brennan, J., concurring in judgment) (agreeing that attorney's letterhead was "neither actually nor inherently misleading"). The Board offers nothing to support a different conclusion with respect to the CFP designation.9 Given "the complete absence of any evidence of deception," id., at 106, the Board's "concern about the possibility of deception in hypothetical cases is not sufficient to rebut the constitutional presumption favoring disclosure over concealment," id., at 111.109 JUSTICE O'CONNOR writes that "[t]he average consumer has no way to verify the accuracy or value of [Ibanez'] use of the CFP designation" because her advertising, "[u]nlike the advertisement in Peel, ... did not identify the organization that had conferred the certification." Post, at 150. We do not agree that the consumer of financial planning services is thus disarmed.To verify Ibanez' CFP credential, a consumer could call the CFP Board of Standards. The Board that reprimanded Ibanez never suggested that such a call would be significantly more difficult to make than one to the certifying organization in Peel, the National Board of Trial Advocacy. We note in this regard that the attorney's letterhead in Peel supplied no address or telephone number for the certifying agency. Most instructive on this matter, we think, is the requirement of the Rules of Professional Conduct of the Florida Bar, to which attorney Ibanez is subject, that she provide "written information setting forth the factual details of [her] experience, expertise, background, and training" to anyone who so inquires. See Florida Bar, Rule of Professional Conduct 4-7.3(a)(2).10 The Board called only three witnesses at the proceeding against Ibanez, all of whom were employees or former employees of the Department of Professional Regulation. Neither the witnesses, nor the Board in its submissions to this Court, offered evidence that any member of the public has been misled by the use of the CFP designation. See Peel, 496 U. S., at 100-101 (noting that there was "no contention that any potential client146The Board alternatively contends that Ibanez' use of the CFP designation is "potentially misleading," entitling the Board to "enact measures short of a total ban to prevent deception or confusion." Brief for Respondent 33, citing Peel, 496 U. S., at 116 (Marshall, J., joined by Brennan, J., concurring in judgment). If the "protections afforded commercial speech are to retain their force," Zauderer, 471 U. S., at 648-649, we cannot allow rote invocation of the words "potentially misleading" to supplant the Board's burden to "demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edenfield, 507 U. S., at 771.The Board points to Rule 24.001(1)(j), Fla. Admin. Code § 61Hl-24.001(1)(j) (1994), which prohibits use of any "specialist" designation unless accompanied by a disclaimer, made "in the immediate proximity of the statement that implies formal recognition as a specialist"; the disclaimer must "stat[e] that the recognizing agency is not affiliated with or sanctioned by the state or federal government," and it must set out the recognizing agency's "requirements for recognition, including, but not limited to, educatio[n], experience[,] and testing." See Brief for Respondent 33-35. Given the state of this record-the failure of the Board to point to any harm that is potentially real, not purely hypothetical-we are satisfied that the Board's action is unjustified. We express no opinion whether, in other situations or on a different record, the Board's insistence on a disclaimer might serve as an appropriately tailored check against deception or confusion, rather than one imposing "unduly burdensome disclosure requirements [that] offend the First Amendment." Zauderer, 471 U. S., at 651. This much is plain, however:The detail required in the disclaimer currently described by the Board effectively rules out notation of the "specialist"or person was actually misled or deceived," nor "any factual finding of actual deception or misunderstanding").147designation on a business card or letterhead, or in a yellow pages listing. 11The concurring Justices, on whom the Board relies, did indeed find the "[NBTA] Certified Civil Trial Specialist" statement on a lawyer's letterhead "potentially misleading," but they stated no categorical rule applicable to all specialty designations. Thus, they recognized that "[t]he potential for misunderstanding might be less if the NBTA were a commonly recognized organization and the public had a general understanding of its requirements." Peel, 496 U. S., at 115. In this regard, we stress again the failure of the Board to back up its alleged concern that the designation CFP would mislead rather than inform.The Board never adverted to the prospect that the public potentially in need of a civil trial specialist, see Peel, supra, is wider, and perhaps less sophisticated, than the public with financial resources warranting the services of a planner. Noteworthy in this connection, "Certified Financial Planner" and "CFP" are well-established, protected federal trademarks that have been described as "the most recognized designation[s] in the planning field." Financial Planners:Report of Staff of United States Securities and Exchange Commission to the House Committee on Energy and Commerce's Subcommittee on Telecommunications and Finance 53 (1988), reprinted in Financial Planners and Investment Advisors, Hearing before the Subcommittee on Consumer Affairs of the Senate Committee on Banking, Housing and Urban Affairs, 100th Cong., 2d Sess., 78 (1988). Approxi-11 Under the Board's regulations, moreover, it appears that even a disclaimer of the kind described would not have saved Ibanez from censure. Rule 24.001(i) flatly bans "[s]tat[ing] a form of recognition by any entity other than the Board that uses the ter[m] 'certified.'" Separate and distinct from that absolute prohibition, the regulations further proscribe "[s]tat[ing] or impl[ying] that the licensee has received formal recognition as a specialist in any aspect of the practice of public accounting, unless the statement contains" a copiously detailed disclaimer. Rule 24.001(j).148mately 27,000 persons have qualified for the designation nationwide. Brief for Certified Financial Planner Board of Standards, Inc., et al. as Amici Curiae 3. Over 50 accredited universities and colleges have established courses of study in financial planning approved by the CFP Board of Standards, and standards for licensure include satisfaction of certain core educational requirements, a passing score on a certification examination "similar in concept to the Bar or CPA examinations," completion of a planning-related work experience requirement, agreement to abide by the CFP Code of Ethics and Professional Responsibility, and an annual continuing education requirement. Id., at 10-15.Ibanez, it bears emphasis, is engaged in the practice of law and so represents her offices to the public. Indeed, she performs work reserved for lawyers but nothing that only CPA's may do. See supra, at 139, n. 3. It is therefore significant that her use of the designation CFP is considered in all respects appropriate by the Florida Bar. See Brief for Florida Bar as Amicus Curiae 9-10 (noting that Florida Bar, Rules of Professional Conduct, and particularly Rule 4-7.3, "specifically allo[w] Ibanez to disclose her CPA and CFP credentials [and] contemplate that Ibanez must provide this information to prospective clients (if relevant)").Beyond question, this case does not fall within the caveat noted in Peel covering certifications issued by organizations that "had made no inquiry into petitioner's fitness," or had "issued certificates indiscriminately for a price"; statements made in such certifications, "even if true, could be misleading." 496 U. S., at 102. We have never sustained restrictions on constitutionally protected speech based on a record so bare as the one on which the Board relies here. See Edenfield, 507 U. S., at 771 (striking down Florida ban on CPA solicitation where Board "presents no studies that suggest personal solicitation ... creates the dangers ... the Board claims to fear" nor even "anecdotal evidence ... that validates the Board's suppositions"); Zauderer, 471 U. S., at149648-649 (striking down restrictions on attorney advertising where "State's arguments amount to little more than unsupported assertions" without "evidence or authority of any kind"). To approve the Board's reprimand of Ibanez would be to risk toleration of commercial speech restraints "in the service of ... objectives that could not themselves justify a burden on commercial expression." Edenfield, 507 U. S., at 171.Accordingly, the judgment of the Florida District Court of Appeal is reversed, and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1993SyllabusIBANEZ v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF ACCOUNTANCYCERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICTNo. 93-639. Argued April 19, 1994-Decided June 13, 1994Petitioner Ibanez is a member of the Florida Bar; she is also a Certified Public Accountant (CPA) licensed by respondent Florida Board of Accountancy (Board), and is authorized by the Certified Financial Planner Board of Standards, a private organization, to use the designation "Certified Financial Planner" (CFP). She referred to these credentials in her advertising and other communication with the public concerning her law practice, placing CPA and CFP next to her name in her yellow pages listing and on her business cards and law offices stationery. Notwithstanding the apparent truthfulness of the communication-it is undisputed that neither her CPA license nor her CFP authorization has been revoked-the Board reprimanded her for engaging in "false, deceptive, and misleading" advertising. The District Court of Appeal of Florida, First District, affirmed.Held: The Board's decision censuring Ibanez is incompatible with First Amendment restraints on official action. Pp. 142-149.(a) Ibanez' use of the CPA and CFP designations qualifies as "commercial speech." The State may ban such speech only if it is false, deceptive, or misleading. See, e. g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 638. If it is not, the State can restrict it, but only upon a showing that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest. See, e. g., Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557, 564, 566. The State's burden is not slight: It must demonstrate that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree. See, e. g., Edenfield v. Fane, 507 U. S. 761, 771. Measured against these standards, the order reprimanding Ibanez cannot stand. Pp. 142-143.(b) The Board asserts that Ibanez' use of the CPA designation on her commercial communications is misleading in that it tells the public she is subject to the Florida Accountancy Act and to the Board's jurisdiction "when she believes and acts as though she is not." This position is insubstantial. Ibanez no longer contests the Board's assertion of juris-137diction over her, and in any event, what she "believes" regarding the reach of the Board's authority is not sanctionable. See Baird v. State Bar of Ariz., 401 U. S. 1,6. Nor can the Board rest on the bare assertion that Ibanez is unwilling to comply with its regulation; it must build its case on specific evidence of noncompliance. It has never even charged Ibanez with an action out of compliance with the governing statutory or regulatory standards. And as long as she holds a currently active CPA license from the Board, it is difficult to see how consumers could be misled by her truthful representation to that effect. Pp. 143-144.(c) The Board's justifications for disciplining Ibanez based on her use of the CFP designation are not more persuasive. The Board presents no evidence that Ibanez' use of the term "certified" "inherently mislead[s]" by causing the public to infer state approval and recognition. See Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U. S. 91 (attorney's use of designation "Certified Civil Trial Specialist By the National Board of Trial Advocacy" neither actually nor inherently misleading). Nor did the Board advert to key aspects of the designation here at issue-the nature of the authorizing organization and the state of knowledge of the public to whom Ibanez' communications are directed-in reaching its alternative conclusion that the CFP designation is "potentially misleading." On the bare record made in this case, the Board has not shown that the restrictions burden no more of Ibanez' constitutionally protected speech than necessary. Pp. 144-149.621 So. 2d 435, reversed and remanded.GINSBURG, J., delivered the opinion for a unanimous Court with respect to Part II-B, and the opinion of the Court with respect to Parts I, II-A, and II-C, in which BLACKMUN, STEVENS, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C. J., joined, post, p. 149.Silvia Safille Ibanez, pro se, argued the cause for petitioner. With her on the briefs were J. Lofton Westmoreland and Robert J. Shapiro.Lisa S. Nelson argued the cause and filed a brief for respondent. **Briefs of amici curiae urging reversal were filed for the Alliance of Practicing Certified Public Accountants et al. by Donald B. Verrilli, Jr., David W DeBruin, and Maureen F. Del Duca; for the American Association of Attorney-Certified Public Accountants, Inc., by David Ostrove,138Full Text of Opinion

1965_13

MR. JUSTICE CLARK delivered the opinion of the Court.The question before us is whether the maintenance and enforcement of a patent obtained by fraud on the Patent Office may be the basis of an action under § 2 of the Sherman Act, [Footnote 1] and therefore subject to a treble damage claim by an injured party under § 4 of the Clayton Act. [Footnote 2] The respondent, Food Machinery, & Chemical Corp. (hereafter Food Machinery), filed this suit for infringement of its patent No. 2,328,655 covering knee-action swing diffusers used in aeration equipment for sewage treatment systems. [Footnote 3] Petitioner, Walker Process Equipment, Page 382 U. S. 174 Inc. (hereafter Walker), denied the infringement and counterclaimed for a declaratory judgment that the patent was invalid. After discovery, Food Machinery moved to dismiss its complaint with prejudice because the patent had expired. Walker then amended its counterclaim to charge that Food Machinery had"illegally monopolized interstate and foreign commerce by fraudulently and in bad faith obtaining and maintaining . . . its patent . . . well knowing that it had no basis for . . . a patent."It alleged fraud on the basis that Food Machinery had sworn before the Patent Office that it neither knew nor believed that its invention had been in public use in the United States for more than one year prior to filing its patent application when, in fact, Food Machinery was a party to prior use within such time. The counterclaim further asserted that the existence of the patent had deprived Walker of business that it would have otherwise enjoyed. Walker prayed that Food Machinery's conduct be declared a violation of the antitrust laws and sought recovery of treble damages.The District Court granted Food Machinery's motion and dismissed its infringement complaint along with Walker's amended counterclaim, without leave to amend and with prejudice. The Court of Appeals for the Seventh Circuit affirmed, 335 F.2d 315. We granted certiorari, 379 U.S. 957. We have concluded that the enforcement of a patent procured by fraud on the Patent Office may be violative of § 2 of the Sherman Act provided the other elements necessary to a § 2 case are present. In such event, the treble damage provisions of § 4 of the Clayton Act would be available to an injured party.IAs the case reaches us, the allegations of the counterclaim, as to the fraud practiced upon the Government by Food Machinery as well as the resulting damage suffered Page 382 U. S. 175 by Walker are taken as true. [Footnote 4] We, therefore, move immediately to a consideration of the legal issues presented.Both Walker and the United States, which appears as amicus curiae, argue that if Food Machinery obtained its patent by fraud, and thereafter used the patent to exclude Walker from the market through "threats of suit" and prosecution of this infringement suit, such proof would establish a prima facie violation of § 2 of the Sherman Act. On the other hand, Food Machinery says that a patent monopoly and a Sherman Act monopolization cannot be equated; the removal of the protection of a patent grant because of fraudulent procurement does not automatically result in a § 2 offense. Both lower courts seem to have concluded that proof of fraudulent procurement may be used to bar recovery for infringement, Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806 (1945), but not to establish invalidity. As the Court of Appeals expressed the proposition, "only the government may annul or set aside' a patent," citing Mowry v. Whitney, 14 Wall. 434 (1872). It went on to state that no case had"decided, or hinted that fraud on the Patent Office may be turned to use in an original affirmative action, instead of as an equitable defense. . . . Since Walker admits that its antitrust theory depends on its ability to prove fraud on the Patent Office, it follows that . . . Walker's second amended counterclaim failed to state a claim upon which relief could be granted."335 F.2d at 316.IIWe have concluded, first, that Walker's action is not barred by the rule that only the United States may sue to cancel or annul a patent. It is true that there is no Page 382 U. S. 176 statutory authority for a private annulment suit and the invocation of the equitable powers of the court might often subject a patentee "to innumerable vexatious suits to set aside his patent." Mowry, supra, 81 U. S. But neither reason applies here. Walker counterclaimed under the Clayton Act, not the patent laws. While one of its elements is the fraudulent procurement of a patent, the action does not directly seek the patent's annulment. The gist of Walker's claim is that, since Food Machinery obtained its patent by fraud it cannot enjoy the limited exception to the prohibitions of § 2 of the Sherman Act, but must answer under that section and § 4 of the Clayton Act in treble damages to those injured by any monopolistic action taken under the fraudulent patent claim. Nor can the interest in protecting patentees from "innumerable vexatious suits" be used to frustrate the assertion of rights conferred by the antitrust laws. It must be remembered that we deal only with a special class of patents, i.e., those procured by intentional fraud.Under the decisions of this Court, a person sued for infringement may challenge the validity of the patent on various grounds, including fraudulent procurement. E.g., Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806 (1945); Hazel-Atlas Co. v. Hartford-Empire Co., 322 U. S. 238 (1944); Keystone Driller Co. v. General Excavator Co., 290 U. S. 240 (1933). In fact, one need not await the filing of a threatened suit by the patentee; the validity of the patent may be tested under the Declaratory Judgment Act, 28 U.S.C. § 2201 (1964 ed.). See Kerotest Mfg. Co. v. C-O Two Fire Equipment Co., 342 U. S. 180, 342 U. S. 185 (1952). At the same time, we have recognized that an injured party may attack the misuse of patent rights. See, e.g., Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661 (1944). To permit recovery of treble damages for the fraudulent procurement of the patent Page 382 U. S. 177 coupled with violations of § 2 accords with these long recognized procedures. It would also promote the purposes so well expressed in Precision Instrument, supra, at 324 U. S. 816:"A patent, by its very nature, is affected with a public interest. . . . [It] is an exception to the general rule against monopolies, and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct, and that such monopolies are kept within their legitimate scope."IIIWalker's counterclaim alleged that Food Machinery obtained the patent by knowingly and willfully misrepresenting facts to the Patent Office. Proof of this assertion would be sufficient to strip Food Machinery of its exemption from the antitrust laws. [Footnote 5] By the same token, Food Machinery's good faith would furnish a complete defense. This includes an honest mistake as to the effect of prior installation upon patentability -- so-called "technical fraud."To establish monopolization or attempt to monopolize a part of trade or commerce under § 2 of the Sherman Act, it would then be necessary to appraise the exclusionary power of the illegal patent claim in terms of the relevant market for the product involved. Without a definition of that market, there is no way to measure Food Machinery's ability to lessen or destroy competition. It may be that the device -- knee-action swing diffusers Page 382 U. S. 178 -- used in sewage treatment systems does not comprise a relevant market. There may be effective substitutes for the device which do not infringe the patent. This is a matter of proof, as is the amount of damages suffered by Walker.As respondent points out, Walker has not clearly articulated its claim. It appears to be based on a concept of per se illegality under § 2 of the Sherman Act. But, in these circumstances, the issue is premature. As the Court summarized in White Motor Co. v. United States, 372 U. S. 253 (1963), the area of per se illegality is carefully limited. We are reluctant to extend it on the bare pleadings and absent examination of market effect and economic consequences.However, even though the per se claim fails at this stage of litigation, we believe that the case should be remanded for Walker to clarify the asserted violations of § 2, and to offer proof thereon. The trial court dismissed its suit not because Walker failed to allege the relevant market, the dominance of the patented device therein, and the injurious consequences to Walker of the patent's enforcement, but rather on the ground that the United States alone may "annul or set aside" a patent for fraud in procurement. The trial court has not analyzed any economic data. Indeed, no such proof has yet been offered, because of the disposition below. In view of these considerations, as well as the novelty of the claim asserted and the paucity of guidelines available in the decided cases, this deficiency cannot be deemed crucial. Fairness requires that, on remand, Walker have the opportunity to make its § 2 claims more specific, to prove the alleged fraud, and to establish the necessary elements of the asserted § 2 violation.Reversed

U.S. Supreme CourtWalker Process Eqpt., Inc. v. Food Machinery Corp., 382 U.S. 172 (1965)Walker Process Equipment, Inc. v.Food Machinery & Chemical Corp.No. 13Argued October 12-13, 1965Decided December 6, 1965382 U.S. 172SyllabusPetitioner, in answer to respondent's suit for patent infringement, denied the infringement and counterclaimed for a declaratory judgment holding the patent invalid. After discovery proceedings, respondent moved to dismiss its complaint because the patent had expired. Petitioner then amended its counterclaim to charge that respondent had illegally monopolized commerce by having fraudulently and in bad faith obtained and maintained the patent in violation of the antitrust laws, and sought treble damages. The District Court dismissed the complaint and the counterclaim, and the Court of Appeals affirmed.Held: The enforcement of a patent procured by fraud on the Patent Office may violate § 2 of the Sherman Act, provided all other elements to establish a § 2 monopolization charge are proved, in which event the treble damage provisions of § 4 of the Clayton Act would be available to the injured party. Pp. 382 U. S. 175-178.(a) Petitioner is not barred by the rule that only the United States may sue to cancel a patent, since, by its counterclaim under the Clayton Act, it does not directly seek the patent's annulment. Pp. 382 U. S. 175-176.(b) In these circumstances rights under the antitrust laws outweigh the protection of patentees from vexatious suits. P. 382 U. S. 176.(c) The recovery of treble damages for the fraudulent procurement of a patent coupled with violations of § 2 of the Sherman Act accords with long recognized procedures whereby an injured party may attack the misuse of patent rights. Pp. 382 U. S. 176-177.(d) Proof of intentional fraud in obtaining the patent would deprive respondent of its exemption from the antitrust laws, while its good faith would furnish a complete defense. P. 382 U. S. 177.(e) The case is remanded to the trial court to allow petitioner to clarify and offer proof on the alleged violations of § 2. P. 382 U. S. 178.335 F.2d 315 reversed and remanded. Page 382 U. S. 173

1962_81

MR. JUSTICE DOUGLAS delivered the opinion of the Court.Civilian employees of the Federal Government were reassigned from Savannah to Atlanta, Georgia, and the General Services Administration sought to arrange by competitive bidding for the intrastate mass shipment of their household goods between those cities. Georgia law, however, does not permit a rate for transporting household goods of more than one family; it requires carriers to quote schedules of approved rates, the total charge to be the sum of the charges figured for individual families. [Footnote 1] Five carriers submitted bids quoting rates lower than those allowed by the Georgia tariff. After the competitive bidding was over and the contract awarded to the lowest responsible bidder, the Georgia Public Service Commission threatened these five carriers with revocation of their intrastate operating certificates should they perform at the rates quoted GSA. The successful bidder thereupon notified GSA that it was unable to perform the contract. Appellee instituted proceedings against the carrier, looking toward the revocation of its certificate. The United States sought to intervene in that proceeding, but it was not allowed to do so. Appellee also refused to allow a GSA official to testify as to the circumstances of the shipping contract that the Commission claimed conflicted with Georgia law.Thereupon, the United States filed suit in the District Court and requested the convocation of a three-judge court. The complaint alleged, inter alia, that Georgia law burdened federal officers in carrying out their federal functions and conflicted with federal procurement Page 371 U. S. 287 policy. The issue as finally joined raises squarely those questions. The District Court held that there was no conflict between Georgia's regulatory scheme and the federal one, concluding that the case is governed by Penn Dairies, Inc. v. Milk Control Comm'n, 318 U. S. 261. See 197 F. Supp. 793. The case is here on direct appeal (28 U.S.C. §§ 1253, 2101(b)); we postponed consideration of the question of jurisdiction until a hearing on the merits. 369 U.S. 882.We have jurisdiction of this appeal if the case was "required . . . to be heard and determined by a district court of three judges." 28 U.S.C. § 1253. The question whether the Georgia regulatory scheme is unconstitutional because it burdened the exercise by the United States of its power to maintain a civilian service and to carry out other constitutional functions is a substantial one, as our decisions in Penn Dairies, Inc. v. Milk Control Comm'n, supra; Public Utilities Comm'n of California v. United States, 355 U. S. 534, and Paul v. United States, ante, p. 371 U. S. 245, and therefore required a three-judge court to adjudicate it. 28 U.S.C. § 2281; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S. 713; Florida Lime & Avacado Growers v. Jacobsen, 362 U. S. 73. We have presented here more than an isolated issue whether a state law conflicts with a federal statute, and therefore must give way by reason of the Supremacy Clause. Cf. Kesler v. Department of Public Safety, 369 U. S. 153. Direct conflict between a state law and federal constitutional provisions raises, of course, a question under the Supremacy Clause, but one of a broader scope than where the alleged conflict is only between a state statute and a federal statute that might be resolved by the construction given either the state or the federal law. Id., 369 U. S. 157. So we have a clear case for convening a three-judge court. Once convened, the case can be disposed of below or here on any ground, whether or not it would have justified the Page 371 U. S. 288 calling of a three-judge court. See Sterling v. Constantin, 287 U. S. 378, 287 U. S. 393-394; Railroad Comm'n v. Pacific Gas Co., 302 U. S. 388, 302 U. S. 391.The District Court, acting on motions for summary judgment filed by each of the parties, said that, were the property being transported "strictly governmental property," the case would be governed by Public Utilities Comm'n of California v. United States, 355 U. S. 534. But since the property involved here is household goods, not military supplies, the court concluded that the case is controlled by Penn Dairies, Inc. v. Milk Control Comm'n, supra.The distinction drawn by the District Court between this case and Public Utilities Comm'n of California v. United States, supra, is not tenable. Between 1943, when Penn Dairies was decided, and 1958, when Public Utilities Comm'n of California was decided, Congress enacted the Armed Services Procurement Act of 1947, 62 Stat. 21, later codified without substantial change, 70A Stat. 127, 10 U.S.C. § 2301 et seq., which extended and elaborated the federal procurement policy of negotiated rates which, as we noted in the Public Utilities Comm'n of California case, conflicted with California's policy of regulated rates. 355 U.S. at 355 U. S. 544. The federal Regulation involved in that case was superseded in 1958 by the Military Traffic Management Regulation. [Footnote 2] That Regulation includes the "procedures to govern the movement of uncreated household goods." [Footnote 3] Another Regulation provides that their transportation is authorized"by the mode of transportation . . . which results in the lowest over-all cost to the Government and which provides the required service satisfactorily. [Footnote 4]"This entails "negotiation" with Page 371 U. S. 289 carriers for "rates" [Footnote 5] on military traffic and "Special arrangements pertaining to other freight traffic." [Footnote 6] Examples could be multiplied, but enough has been said to show that the new Military Traffic Management Regulation continues in effect the provisions of the earlier regulation in force when the Public Utilities Comm'n of California case was decided.The same policy of negotiating rates for shipment of federal property now governs nondefense agencies. The basic statute is the Federal Property and Administrative Services Act of 1949, 63 Stat. 383, 40 U.S.C. § 481, 63 Stat. 393, as amended, 41 U.S.C. § 251 et seq. Its procurement provisions are substantially similar to those contained in the Armed Services Procurement Act of 1947. It was, indeed, enacted to extend to GSA"the principles of the Armed Services Procurement Act of 1947, with appropriate modifications principally designed to eliminate provisions applicable primarily to the military."H.R.Rep.No. 670, 81st Cong., 1st Sess., p. 6. Under the regulations promulgated pursuant to this Act, procurement of transportation and improvement of transportation and traffic practices of executive agencies are entrusted to the Commissioner of the Transportation and Public Utilities Service (TPUS). [Footnote 7] He is to represent the executive agencies "in negotiations of rates and contracts for transportation." [Footnote 8] The Commissioner, in procurement and contracting, [Footnote 9]"(a) Negotiates purchases and contracts for property and services without advertising, and makes any Page 371 U. S. 290 determinations and decisions required in connection therewith. . . .""(b) Makes purchases and contracts for property and services by advertising, and determines that the rejection of all bids is in the public interest.""(c) Determines the type of negotiated contract which will promote the best interests of the Government. . . ."The Regulation governing the Commissioner's functions enjoins him:"to evaluate mass movements of household goods and personal effects and, when feasible, to negotiate with carriers to effect the most economical basis for the movement of such household goods and personal effects. [Footnote 10]""Except when the exigency of the movement precludes such action, all requests for rates for mass movements . . . shall be made by formal advertising [for bids]. . . . [Footnote 11]"That Regulation is plainly within the purview of the Act, which provides in § 302, as amended, 41 U.S.C. § 252, as follows:"All purchases and contracts for property and services shall be made by advertising, as provided in section 253 of this title, except that such purchases and contracts may be negotiated by the agency head without advertising if --""* * * *" "(2) the public exigency will not admit of the delay incident to advertising;""* * * * Page 371 U. S. 291" "(10) for property or services for which it is impracticable to secure competition;""* * * *" "(14) for property or services as to which the agency head determines that bid prices after advertising therefor are not reasonable . . . or have not been independently arrived at in open competition: Provided, That . . . (B) the negotiated price is the lowest negotiated price offered by any responsible supplier. . . ."Section 253(b) provides that awards shall be made "to that responsible bidder whose bid . . . will be most advantageous to the Government, price and other factors considered." Moreover, 40 U.S.C. § 481(a)(4) directs GSA to represent executive agencies "in negotiations with carriers" with respect to transportation "for the use of executive agencies." Transfer of household goods of federal employees, whether military [Footnote 12] or civilian, has been made by Congress a charge against federal funds when employees are transferred from one official station to another. [Footnote 13]It is said that the 1949 Act gives the Administrator power to deal only with whoever has authority to make rate decisions, whether it be the carrier on interstate shipments or the state regulatory agency on intrastate shipments. 40 U.S.C. § 481 does indeed provide:"The Administrator shall, in respect of executive agencies, and to the extent that he determines that so doing is advantageous to the Government in terms of economy, efficiency, or service, and with due regard to the program activities of the agencies concerned --""* * * * Page 371 U. S. 292" "(4) with respect to transportation and other public utility services for the use of executive agencies, represent such agencies in negotiations with carriers and other public utilities and in proceedings involving carriers or other public utilities before Federal and State regulatory bodies. . . ."(Emphasis added.)But that provision does not say that state-fixed rates govern the federal procurement official unless he can get them changed. It is comparable to § 22 of the Interstate Commerce Act, 49 U.S.C. § 22, which allows the United States to obtain preferred rates."The object of the section was to settle, beyond doubt, that the preferential treatment of certain classes of shippers and travelers . . . is not necessarily prohibited."Nashville R. Co. v. Tennessee, 262 U. S. 318, 262 U. S. 323. And see Southern R. Co. v. United States, 322 U. S. 72; United States v. Interstate Commerce Comm'n, 352 U. S. 158.By § 481(a) the Administrator is authorized to seek before state agencies preferential treatment for federal shipments. But there is not a word suggesting that, failing in that regard, he is bound to accept the state-fixed rate. The Act and the Regulation speak too clearly in terms of the "lowest over-all cost" to the Government, either through competitive bidding or negotiation with carriers, for us to conclude that the only relief against state fixed rates is an administrative remedy before the state agency either through negotiation or litigation. Congress has not tied the hands of the federal procurement officials so tightly.We have then a federal procurement policy of negotiated rates for transporting household goods of federal employees -- a policy as clear and as explicit as the federal policy for transporting military supplies involved in Public Utilities Comm'n of California v. United States, Page 371 U. S. 293 supra. The Georgia policy, which is opposed to this federal policy, must accordingly give way. For, as we noted in Public Utilities Comm'n of California v. United States, supra, at 355 U. S. 544, a State is without power by reason of the Supremacy Clause to provide the conditions on which the Federal Government will effectuate its policies. Whether the federal policy is a wise one is for the Congress and the Chief Executive to determine. See Perkins v. Lukens Steel Co., 310 U. S. 113, 310 U. S. 127 et seq. Once they have spoken, it is our function to enforce their will.Reversed

U.S. Supreme CourtUnited States v. Georgia Pub. Svc. Comm'n, 371 U.S. 285 (1963)United States v. Georgia Public Service CommissionNo. 81Argued October 18, 1962Decided January 14, 1963371 U.S. 285SyllabusThe United States sued in a Federal District Court to enjoin the Georgia Public.Service Commission from prohibiting common carriers from contracting with agencies of the Federal Government for the mass transportation within that State of the household goods of civilian employees of the Federal Government at rates other than those prescribed by the Georgia Commission. A three-judge District Court convened to hear the case denied an injunction, and the United States appealed directly to this Court.Held:1. This case is one "required" to be heard by a three-judge District Court, and a direct appeal to this Court was properly taken under 28 U.S. C. § 1253. Pp. 371 U. S. 287-288.2. Federal procurement statutes provide for the negotiation of special rates for transporting household goods of federal employees at government expense, and the State could not defeat the purpose of this legislation by prohibiting the common carriers from transporting such goods intrastate at rates other than those prescribed by the Georgia Public Service Commission. Public Utilities Commission of California v. United States, 355 U. S. 534. Pp. 371 U. S. 288-293.197 F. Supp. 793 reversed. Page 371 U. S. 286

1979_78-1014

Mr. JUSTICE WHITE delivered the opinion of the Court.Under the Federal Tort Claims Act (Act), [Footnote 1] 28 U.S.C. § 2401(b), a tort claim against the United States is barred unless it is presented in writing to the appropriate federal agency "within two years after such claim accrues." The issue in this case is whether the claim "accrues" within the meaning of the Act when the plaintiff knows both the existence and the cause of his injury, or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice.IRespondent Kubrick, a veteran, was admitted to the Veterans' Administration (VA) hospital in Wilkes-Barre, Pa., in April, 1968, for treatment of an infection of the right femur. Following surgery, the infected area was irrigated with neomycin, an antibiotic, until the infection cleared. Approximately six weeks after discharge, Kubrick noticed Page 444 U. S. 114 a ringing sensation in his ears and some loss of hearing. An ear specialist in Scranton, Pa., Dr. Soma, diagnosed the condition as bilateral nerve deafness. His diagnosis was confirmed by other specialists. One of them, Dr. Sataloff, secured Kubrick's VA hospital records and in January, 1969, informed Kubrick that it was highly possible that the hearing loss was the result of the neomycin treatment administered at the hospital. Kubrick, who was already receiving disability benefits for a service-connected back injury, filed an application for an increase in benefits pursuant to 38 U.S.C. § 351 [Footnote 2] alleging that the neomycin treatment had caused his deafness. The VA denied the claim in September, 1969, and, on resubmission, again denied the claim on the grounds that no causal relationship existed between the neomycin treatment and the hearing loss and that there was no evidence of "carelessness, accident, negligence, lack of proper skill, error in judgment or other fault on the part of the Government." In the course of pursuing his administrative appeal, Kubrick was informed by the VA that Dr. Soma had suggested a connection between Kubrick's loss of hearing and his prior occupation as a machinist. When questioned by Kubrick on June 2, 1971, Dr. Soma not only denied making the statement attributed to him but also told respondent that the neomycin had caused his injury, and should not have been administered. On Dr. Sataloff's advice, respondent then consulted an attorney and employed him to help with his appeal. In rendering its decision in August, 1972, the VA Board of Page 444 U. S. 115 Appeals recognized that Kubrick's hearing loss "may have been caused by the neomycin irrigation" but rejected the appeal on the ground that the treatment was in accordance with acceptable medical practices and procedures and that the Government was therefore faultless. [Footnote 3]Kubrick then filed suit under the Act, alleging that he had been injured by negligent treatment in the VA hospital. [Footnote 4] After trial, the District Court rendered judgment for Kubrick, rejecting, among other defenses, the assertion by the United States that Kubrick's claim was barred by the 2-year statute of limitations because the claim had accrued in January, 1969, when he learned from Dr. Sataloff that his hearing loss had probably resulted from the neomycin. The District Court conceded that the lower federal courts had held with considerable uniformity that a claim accrues within the meaning of the Act when "the claimant has discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice," 435 F. Supp. 166, 180 (ED Pa.1977), and that notice of the injury and its cause normally were sufficient to trigger the limitations period. Page 444 U. S. 116 Id. at 184. As the District Court read the authorities, however, a plaintiff could avoid the usual rule by showing that he had exercised reasonable diligence and had no "reasonable suspicion" that there was negligence in his treatment. Id. at 185."[W]e do not believe it reasonable to start the statute running until the plaintiff had reason at least to suspect that a legal duty to him had been breached."Ibid. Here, the District Court found, Kubrick had no reason to suspect negligence until his conversation with Dr. Soma in June, 1971, less than two years prior to presentation of his tort claim.The District Court went on to hold, based on the expert testimony before it, that a reasonably competent orthopedic surgeon in the Wilkes-Barre community, which the VA doctor held himself out to be, should have known that irrigating Kubrick's wound with neomycin would cause deafness. It was therefore negligent to use that drug in that manner. Damages were determined and awarded.Except for remanding to resolve a setoff claimed by the United States, [Footnote 5] the Court of Appeals for the Third Circuit affirmed. 581 F.2d 1092 (1978). It ruled that even though a plaintiff is aware of his injury and of the defendant's responsibility for it, the statute of limitations does not run where the plaintiff shows that,"in the exercise of due diligence, he did not know, nor should he have known, facts which would have alerted a reasonable person to the possibility that the treatment was improper."Id. at 1097. We granted certiorari to resolve this important question of the administration Page 444 U. S. 117 of the statute, 440 U.S. 906 (1979), and we now reverse.IIStatutes of limitations, which "are found and approved in all systems of enlightened jurisprudence," Wood v. Carpenter, 101 U. S. 135, 101 U. S. 139 (1879), represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time, and that "the right to be free of stale claims in time comes to prevail over the right to prosecute them." Railroad Telegraphers v. Railway Express Agency, 321 U. S. 342, 321 U. S. 349 (1944). These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise. United States v. Marion, 404 U. S. 307, 404 U. S. 322, n. 14 (1971); Burnett v. New York Central R. Co., 380 U. S. 424, 380 U. S. 428 (1965); Chase Securities Corp. v. Donaldson, 325 U. S. 304, 325 U. S. 314 (1945); Missouri, K. T. R. Co. v. Harriman, 227 U. S. 657, 227 U. S. 672 (1913); Bell v. Morrison, 1 Pet. 351, 26 U. S. 360 (1828).Section 2401(b), the limitations provision involved here, is the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims. Campbell v. Haverhill, 155 U. S. 610, 155 U. S. 617 (1895); Bell v. Morrison, supra at 26 U. S. 360. We should regard the plea of limitations as a "meritorious defense, in itself serving a public interest." Guaranty Trust Co. v. United States, 304 U. S. 126, 304 U. S. 136 (1938).We should also have in mind that the Act waives the immunity of the United States, and that, in construing the statute of limitations, which is a condition of that waiver, we Page 444 U. S. 118 should not take it upon ourselves to extend the waiver beyond that which Congress intended. See Soriano v. United States, 352 U. S. 270, 352 U. S. 276 (1957); cf. Indian Towing Co. v. United States, 350 U. S. 61, 350 U. S. 68-69 (1955). Neither, however, should we assume the authority to narrow the waiver that Congress intended. Indian Towing Co. v. United States, supra.It is in the light of these considerations that we review the judgment of the Court of Appeals.IIIIt is undisputed in this case that, in January, 1969, Kubrick was aware of his injury and its probable cause. Despite this factual predicate for a claim against the VA at that time, the Court of Appeals held that Kubrick's claim had not yet accrued, and did not accrue until he knew or could reasonably be expected to know that, in the eyes of the law, the neomycin treatment constituted medical malpractice. The Court of Appeals thought that, in "most" cases, knowledge of the causal connection between treatment and injury, without more, will or should alert a reasonable person that there has been an actionable wrong. 581 F.2d at 1096. But it is apparent, particularly in light of the facts in this record, that the Court of Appeals' rule would reach any case where an untutored plaintiff, without benefit of medical or legal advice and because of the "technical complexity" of the case, id. at 1097, would not himself suspect that his doctors had negligently treated him. As we understand the Court of Appeals, the plaintiff in such cases need not initiate a prompt inquiry, and would be free to sue at any time within two years from the time he receives, or perhaps forms for himself, a reasonable opinion that he has been wronged. In this case, for example, Kubrick would have been free to sue if Dr. Soma had not told him until 1975, or even 1980, instead of 1971, that the neomycin treatment had been a negligent act. Page 444 U. S. 119There is nothing in the language or the legislative history of the Act that provides a substantial basis for the Court of Appeals' construction of the accrual language of § 2401(h). [Footnote 6] Nor did the prevailing case law at the time the Act was passed lend support for the notion that tort claims in general, or malpractice Page 444 U. S. 120 claims in particular do not accrue until a plaintiff learns that his injury was negligently inflicted. Indeed, the Court of Appeals recognized that the general rule under the Act has been that a tort claim accrues at the time of the plaintiff's injury, although it thought that in medical malpractice ases the rule had come to be that the 2-year period did not begin to run until the plaintiff has discovered both his injury and its cause. [Footnote 7] But even so -- and the United States was prepared Page 444 U. S. 121 to concede as much for present purposes -- the latter rule would not save Kubrick's action, since he was aware of these essential facts in January, 1969. Reasoning, however, that, if a claim does not accrue until a plaintiff is aware of his injury and its cause, neither should it accrue until he knows or should suspect that the doctor who caused his injury was legally blameworthy, the Court of Appeals went on to hold that the limitations period was not triggered until Dr. Soma indicated, in June, 1971, that the neomycin irrigation treatment had been improper. [Footnote 8] Page 444 U. S. 122We disagree. We are unconvinced that, for statute of limitations purposes, a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask. If he does ask, and if the defendant has failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff.In this case, the trial court found, and the United States did not appeal its finding, that the treating physician at the VA hospital had failed to observe the standard of care governing doctors of his specialty in Wilkes-Barre, Pa., and that reasonably competent doctors in this branch of medicine would have known that Kubrick should not have been treated with neomycin. [Footnote 9] Crediting this finding, as we must, Kubrick Page 444 U. S. 123 need only have made inquiry among doctors with average training and experience in such matters to have discovered that he probably had a good cause of action. The difficulty is that it does not appear that Kubrick ever made any inquiry, although meanwhile he had consulted several specialists about his loss of hearing and had been in possession of all the facts about the cause of his injury since January, 1969. Furthermore, there is no reason to doubt that Dr. Soma, who, in 1971, volunteered his opinion that Kubrick's treatment had been improper, would have had the same opinion had the plaintiff sought his judgment in 1969.We thus cannot hold that Congress intended that "accrual" of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. [Footnote 10] If there exists in the community a generally applicable standard of care with respect to the treatment of his ailment, we see no Page 444 U. S. 124 reason to suppose that competent advice would not be available to the plaintiff as to whether his treatment conformed to that standard. If advised that he has been wronged, he may promptly bring suit. If competently advised to the contrary, he may be dissuaded, as he should be, from pressing a baseless claim. Of course, he may be incompetently advised, or the medical community may be divided on the crucial issue of negligence, as the experts proved to be on the trial of this case. But however, or even whether, he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more than two years have passed from the plaintiff's discovery of the relevant facts about injury.The District Court, 435 F. Supp. at 185, and apparently the Court of Appeals, thought its ruling justified because of the "technical complexity," 581 F.2d at 1097, of the negligence question in this case. But determining negligence or not is often complicated and hotly disputed, so much so that judge or jury must decide the issue after listening to a barrage of conflicting expert testimony. And if, in this complicated malpractice case, the statute is not to run until the plaintiff is led to suspect negligence, it would be difficult indeed not to apply the same accrual rule to medical and health claims arising under other statutes and to a whole range of other negligence cases arising under the Act and other federal statutes, where the legal implications or complicated facts make it unreasonable to expect the injured plaintiff, who does not seek legal or other appropriate advice, to realize that his legal rights may have been invaded. Page 444 U. S. 125We also have difficulty ascertaining the precise standard proposed by the District Court and the Court of Appeals. On the one hand, the Court of Appeals seemed to hold that a Torts Claims Act malpractice claim would not accrue until the plaintiff knew or could reasonably be expected to know of the Government's breach of duty. Ibid. On the other hand, it seemed to hold that the claim would accrue only when the plaintiff had reason to suspect or was aware of facts that would have alerted a reasonable person to the possibility that a legal duty to him had been breached. Ibid. In any event, either of these standards would go far to eliminate the statute of limitations as a defense separate from the denial of breach of duty.IVIt goes without saying that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims. But that is their very purpose, and they remain as ubiquitous as the statutory rights or other rights to which they are attached or are applicable. We should give them effect in accordance with what we can ascertain the legislative intent to have been. We doubt that here we have misconceived the intent of Congress when § 2401(b) was first adopted or when it was amended to extend the limitations period to two years. But if we have, or even if we have not but Congress desires a different result, it may exercise its prerogative to amend the statute so as to effect its legislative will.The judgment of the Court of Appeals isReversed

U.S. Supreme CourtUnited States v. Kubrick, 444 U.S. 111 (1979)United States v. KubrickNo. 78-1014Argued October 3, 1979Decided November 28, 1979444 U.S. 111SyllabusA provision of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401(b), bars any tort claim against the United States unless it is presented in writing to the appropriate federal agency "within two years after such claim accrues." In 1968, several weeks after having an infected leg treated with neomycin (an antibiotic) at a Veterans' Administration (VA) hospital, respondent suffered a hearing loss, and in January, 1969, was informed by a private physician that it was highly possible that the hearing loss was the result of the neomycin treatment. Subsequently, in the course of respondent's unsuccessful administrative appeal from the VA's denial of his claim for certain veterans' benefits based on the allegation that the neomycin treatment had caused his deafness, another private physician, in June, 1971, told respondent that the neomycin had caused his injury and should not have been administered. In 1972, respondent filed suit under the FTCA, alleging that he had been injured by negligent treatment at the VA hospital. The District Court rendered judgment for respondent, rejecting the Government's defense that respondent's claim was barred by the 2-year statute of limitations because it had accrued in January, 1969, when respondent first learned that his hearing loss had probably resulted from the neomycin, and holding that respondent had no reason to suspect negligence until his conversation with the second physician in June, 1971, less than two years before the action was commenced. The Court of Appeals affirmed, holding that, if a medical malpractice claim does not accrue until a plaintiff is aware of his injury and its cause, neither should it accrue until he knows or should suspect that the doctor who caused the injury was legally blameworthy, and that, here, the limitations period was not triggered until the second physician indicated, in June, 1971, that the neomycin treatment had been improper.Held: A claim accrues within the meaning of § 2401(b) when the plaintiff knows both the existence and the cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice. Hence, respondent's claim accrued in Page 444 U. S. 112 January, 1969, when he was aware of his injury and its probable cause, and thus was barred by the 2-year statute of limitations. Pp. 444 U. S. 117-125.(a) Section 2401(b) is the balance struck by Congress in the context of tort claims against the Government, and should not be construed so as to defeat its purpose of encouraging the prompt presentation of claims. Moreover, § 2401(b), being a condition of the FTCA's waiver of the United States' immunity from suit, should not be construed to extend such waiver beyond that which Congress intended. Pp. 444 U. S. 117-118.(b) There is nothing in the FTCA's language or legislative history that provides a substantial basis for the Court of Appeals' construction of § 2401(b). Nor did the prevailing case law at the time the FTCA was passed lend support to the notion that tort claims in general or malpractice claims in particular do not accrue until a plaintiff learns that his injury was negligently inflicted. Pp. 444 U. S. 119-120.(c) For statute of limitations purposes, a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should not receive equal treatment. P. 444 U. S. 122.(d) A plaintiff such as respondent, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community, and to excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute. Whether or not he is competently advised, or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort plaintiffs must make. Pp. 444 U. S. 123-124.581 F.2d 1092, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 444 U. S. 125. Page 444 U. S. 113

1968_293

MR. JUSTICE MARSHALL delivered the opinion of the Court.An investigation of appellant's alleged bookmaking activities led to the issuance of a search warrant for appellant's home. Under authority of this warrant, federal and state agents secured entrance. They found very little evidence of bookmaking activity, but, while looking through a desk drawer in an upstairs bedroom, one of the federal agents, accompanied by a state officer, found three reels of eight-millimeter film. Using a projector and screen found in an upstairs living room, they viewed the films. The state officer concluded that they were obscene and seized them. Since a further examination of the bedroom indicated that appellant occupied it, he was charged with possession of obscene matter and placed under arrest. He was later indicted for "knowingly hav[ing] possession of . . . obscene matter" in violation of Georgia law. [Footnote 1] Appellant Page 394 U. S. 559 was tried before a jury and convicted. The Supreme Court of Georgia affirmed. Stanley v. State, 224 Ga. 259, 161 S.E.2d 309 (1968). We noted probable jurisdiction of an appeal brought under 28 U.S.C. § 1257(2). 393 U.S. 819 (1968).Appellant raises several challenges to the validity of his conviction. [Footnote 2] We find it necessary to consider only one. Appellant argues here, and argued below, that the Georgia obscenity statute, insofar as it punishes mere private possession of obscene matter, violates the First Amendment, as made applicable to the States by the Fourteenth Amendment. For reasons set forth below, we agree that the mere private possession of obscene matter cannot constitutionally be made a crime.The court below saw no valid constitutional objection to the Georgia statute, even though it extends further than the typical statute forbidding commercial sales of obscene material. It held that"[i]t is not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was 'with intent to sell, expose or circulate the same.'"Stanley v. State, supra, at 261, 161 S.E.2d at 311. The State and appellant both agree that the question here before us is whether "a statute imposing criminal sanctions upon the mere [knowing] possession of obscene matter" is constitutional. In this context, Georgia concedes that the present case appears to be one of "first Page 394 U. S. 560 impression . . . on this exact point," [Footnote 3] but contends that, since "obscenity is not within the area of constitutionally protected speech or press," Roth v. United States, 354 U. S. 476, 354 U. S. 485 (1957), the States are free, subject to the limits of other provisions of the Constitution, see, e.g., Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-645 (1968), to deal with it any way deemed necessary, just as they may deal with possession of other things thought to be detrimental to the welfare of their citizens. If the State can protect the body of a citizen, may it not, argues Georgia, protect his mind?It is true that Roth does declare, seemingly without qualification, that obscenity is not protected by the First Amendment. That statement has been repeated in various forms in subsequent cases. See, e.g., Smith v. California, 361 U. S. 147, 361 U. S. 152 (1959); Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 186-187 (1964) (opinion of BRENNAN, J.); Ginsberg v. New York, supra, at 390 U. S. 635. However, neither Roth nor any subsequent decision of this Court dealt with the precise problem involved in the present case. Roth was convicted of mailing obscene circulars and advertising, and an obscene book, in violation of a federal obscenity statute. [Footnote 4] The defendant in a companion case, Alberts v. California, 354 U. S. 476 (1957), was convicted of "lewdly keeping for sale obscene and indecent books, and [of] writing, composing and publishing an obscene advertisement of them. . . ." Id. at 354 U. S. 481. None of the statements cited by the Court in Page 394 U. S. 561 Roth for the proposition that "this Court has always assumed that obscenity is not protected by the freedoms of speech and press" were made in the context of a statute punishing mere private possession of obscene material; the cases cited deal for the most part with use of the mails to distribute objectionable material or with some form of public distribution or dissemination. [Footnote 5] Moreover, none of this Court's decisions subsequent to Roth involved prosecution for private possession of obscene materials. Those cases dealt with the power of the State and Federal Governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter. [Footnote 6] Indeed, with one Page 394 U. S. 562 exception, we have been unable to discover any case in which the issue in the present case has been fully considered. [Footnote 7] Page 394 U. S. 563In this context, we do not believe that this case can be decided simply by citing Roth. Roth and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections. Neither Roth nor any other decision of this Court reaches that far. As the Court said in Roth itself,"[c]easeless vigilance is the watchword to prevent . . . erosion [of First Amendment rights] 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."354 U.S. at 354 U. S. 488. Roth and the cases following it discerned such an "important interest" in the regulation of commercial distribution of Page 394 U. S. 564 obscene material. That holding cannot foreclose an examination of the constitutional implications of a statute forbidding mere private possession of such material.It is now well established that the Constitution protects the right to receive information and ideas. "This freedom [of speech and press] . . . necessarily protects the right to receive. . . ." Martin v. City of Struthers, 319 U. S. 141, 319 U. S. 143 (1943); see Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 482 (1965); Lamont v. Postmaster General, 381 U. S. 301, 381 U. S. 307-308 (1965) (BRENNAN, J., concurring); cf. Pierce v. Society of Sisters, 268 U. S. 510 (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U. S. 507, 333 U. S. 510 (1948), is fundamental to our free society. Moreover, in the context of this case -- a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home -- that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy."The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized man."Olmstead v. United States, 277 U. S. 438, 277 U. S. 478 (1928) (Brandeis, J., dissenting). See Griswold v. Connecticut, supra; cf. NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 (1958). Page 394 U. S. 565These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases -- the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as "obscene" is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.And yet, in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual's mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person's thoughts. [Footnote 8] To Page 394 U. S. 566 some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. As the Court said in Kingsley International Pictures Corp. v. Regents, 360 U. S. 684, 360 U. S. 688-689 (1959),"[t]his argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. . . . And, in the realm of ideas, it protects expression which is eloquent no less than that which is unconvincing."Cf. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952). Nor is it relevant that obscene materials in general, or the particular films before the Court, are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all. See Winters v. New York, supra, at 333 U. S. 510. Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.Perhaps recognizing this, Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion. [Footnote 9] But, more important, if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that, in the context of private consumption of ideas and information we should adhere to the view that "[a]mong free men, the deterrents ordinarily to be Page 394 U. S. 567 applied to prevent crime are education and punishment for violations of the law. . . ." Whitney v. California, 274 U. S. 357, 274 U. S. 378 (1927) (Brandeis, J., concurring). See Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 938 (1963). Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.It is true that, in Roth, this Court rejected the necessity of proving that exposure to obscene material would create a clear and present danger of antisocial conduct or would probably induce its recipients to such conduct. 354 U.S. at 354 U. S. 486-487. But that case dealt with public distribution of obscene materials and such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, see Ginsberg v. New York, supra, or that it might intrude upon the sensibilities or privacy of the general public. [Footnote 10] See Redrup v. New York, 386 U. S. 767, 386 U. S. 769 (1967). No such dangers are present in this case.Finally, we are faced with the argument that prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution. That argument is based on alleged difficulties of proving an intent to distribute or in producing evidence of actual distribution. We are not convinced that such difficulties Page 394 U. S. 568 exist, but even if they did we do not think that they would justify infringement of the individual's right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws. See Smith v. California, 361 U. S. 147 (1959).We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. [Footnote 11] Roth and the cases following that decision are not impaired by today's holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home. Accordingly, the judgment of the court below is reversed and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtStanley v. Georgia, 394 U.S. 557 (1969)Stanley v. GeorgiaNo. 293Argued January 14-15, 1969Decided April 7, 1969394 U.S. 557SyllabusUnder authority of a warrant to search appellant's home for evidence of his alleged bookmaking activities, officers found some films in his bedroom. The films were projected and deemed to be obscene. Appellant was arrested for their possession. He was thereafter indicted, tried, and convicted for "knowingly hav[ing] possession of . . . obscene matter" in violation of a Georgia law. The Georgia Supreme Court affirmed, holding it"not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was 'with intent to sell, expose or circulate the same.'"Appellant contends that the Georgia obscenity statute is unconstitutional insofar as it punishes mere private possession of obscene matter. Georgia, relying on Roth v. United States, 354 U. S. 476, argues the statute's validity on the ground that "obscenity is not within the area of constitutionally protected speech or press." Id. at 354 U. S. 485.Held: The First Amendment as made applicable to the States by the Fourteenth prohibits making mere private possession of obscene material a crime. Pp. 394 U. S. 560-568.(a) Neither Roth, supra, nor subsequent decisions of the Court were made in the context of a statute punishing mere private possession of obscene material, but involved governmental power to prohibit or regulate certain public actions respecting obscene matter. Pp. 394 U. S. 560-564.(b) The Constitution protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy and control of one's thoughts. Pp. 394 U. S. 564-566.(c) The State may not prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct, Roth, supra, distinguished, or proscribe such possession on the ground that it is a necessary incident to a statutory scheme prohibiting distribution, see Smith v. California, 361 U. S. 147. Pp. 394 U. S. 566-568.224 Ga. 259, 161 S.E.2d 309, reversed and remanded. Page 394 U. S. 558

1974_73-1869

MR. JUSTICE STEWART delivered the opinion of the Court.Section 5 of the Voting Rights Act of 1965 [Footnote 1] prohibits Page 425 U. S. 132 a State or political subdivision subject to § 4 of the Act [Footnote 2] from enforcing"any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect Page 425 U. S. 133 to voting different from that in force or effect on November 1, 1964"unless it has obtained a declaratory judgment from the District Court for the District of Columbia that such change "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" or has submitted the proposed change to the Attorney General and the Attorney General has not objected to it. The constitutionality of this procedure was upheld in South Carolina v. Katzenbach, 383 U. S. 301, and it is now well established that § 5 is applicable when a State or political subdivision adopts a legislative reapportionment plan. Allen v. State Board of Elections, 393 U. S. 544; Georgia v. United States, 411 U. S. 526.The city of New Orleans brought this suit under § 5 seeking a judgment declaring that a reapportionment of New Orleans' councilmanic districts did not have the purpose or effect of denying or abridging the right to vote on account of race or color. [Footnote 3] The District Court Page 425 U. S. 134 entered a judgment of dismissal, holding that the new reapportionment plan would have the effect of abridging the voting rights of New Orleans' Negro citizens. 374 F. Supp. 363. The city appealed the judgment to this Court, claiming that the District Court used an incorrect standard in assessing the effect of the reapportionment in this § 5 suit. We noted probable jurisdiction of the appeal. 419 U.S. 822.INew Orleans is a city of almost 600,000 people. Some 55% of that population is white, and the remaining 45% is Negro. Some 65% of the registered voters are white, and the remaining 35% are Negro. [Footnote 4] In 1954, New Orleans adopted a mayor-council form of government. Since that time, the municipal charter has provided that the city council is to consist of seven members, one to be elected from each of five councilmanic districts, and two to be elected by the voters of the city at large. The 1954 charter also requires an adjustment of the boundaries of the five single member councilmanic districts following each decennial census to reflect population shifts among the districts. Page 425 U. S. 135In 1961, the city council redistricted the city based on the 1960 census figures. That reapportionment plan established four districts that stretched from the edge of Lake Pontchartrain on the north side of the city to the Mississippi River on the city's south side. The fifth district was wedge-shaped, and encompassed the city's downtown area. In one of these councilmanic districts, Negroes constituted a majority of the population, but only about half of the registered voters. In the other four districts, white voters clearly outnumbered Negro voters. No Negro was elected to the New Orleans City Council during the decade from 1960 to 1970.After receipt of the 1970 census figures, the city council adopted a reapportionment plan (Plan I) that continued the basic north-to-south pattern of councilmanic districts combined with a wedge-shaped, downtown district. Under Plan I, Negroes constituted a majority of the population in two districts, but they did not make up a majority of registered voters in any district. The largest percentage of Negro voters in a single district under Plan I was 45.2%. When the city submitted Plan I to the Attorney General pursuant to § 5, he objected to it, stating that it appeared to "dilute black voting strength by combining a number of black voters with a larger number of white voters in each of the five districts." He also expressed the view that "the district lines [were not] drawn as they [were] because of any compelling governmental need," and that the district lines did "not reflect numeric population configurations or considerations of district compactness or regularity of shape."Even before the Attorney General objected to Plan I, the city authorities had commenced work on a second plan -- Plan II. [Footnote 5] That plan followed the general north-to-south Page 425 U. S. 136 districting pattern common to the 1961 apportionment and Plan I. [Footnote 6] It produced Negro population majorities in two districts and a Negro voter majority (52.6%) in one district. When Plan II was submitted to the Attorney General, he posed the same objections to it that he had raised to Plan I. In addition, he noted that "the predominantly black neighborhoods in the city are located generally in an east to west progression," and pointed out that the use of north-to-south districts in such a situation almost inevitably would have the effect of diluting the maximum potential impact of the Negro vote. Following the rejection by the Attorney General of Plan II, the city brought this declaratory judgment action in the United States District Court for the District of Columbia.The District Court concluded that Plan II would have the effect of abridging the right to vote on account of race or color. [Footnote 7] It calculated that, if Negroes could elect city councilmen in proportion to their share of the city's registered voters, they would be able to choose 2.42 of the city's seven councilmen, and, if in proportion to their share of the city's population, to choose 3.15 councilmen. [Footnote 8] But, under Plan II, the District Court concluded Page 425 U. S. 137 that, since New Orleans' elections had been marked by bloc voting along racial lines, Negroes would probably be able to elect only one councilman -- the candidate from the one councilmanic district in which a majority of the voters ere Negroes. This difference between mathematical potential and predicted. reality was such that "the burden in the case at bar was at least to demonstrate that nothing but the redistricting proposed by Plan II was feasible." 374 F. Supp. at 393. The court concluded that"[t]he City has not made that sort of demonstration; indeed, it was conceded at trial that neither that plan nor any of its variations was the City's sole available alternative."Ibid. [Footnote 9]As a separate and independent ground for rejecting Plan II, the District Court held that the failure of the plan to alter the city charter provision establishing two at-large seats had the effect in itself of "abridging the right to vote . . . on account of race or color." As the court put it:"[T]he City has not supported the choice of at-large elections by any consideration which would satisfy Page 425 U. S. 138 the standard of compelling governmental interest, or the need to demonstrate the improbability of its realization through the use of single-member districts. These evaluations compel the conclusion that the feature of the city's electoral scheme by which two councilmen are selected at large has the effect of impermissibly minimizing the vote of its black citizens; and the further conclusion that, for this additional reason, the city's redistricting plan does not pass muster."Id. at 402. (Footnotes omitted.)The District Court therefore refused to allow Plan II to go into effect. As a result, there have been no councilmanic elections in New Orleans since 1970, and the councilmen elected at that time (or their appointed successors) have remained in office ever since.IIAThe appellants urge, and the United States on reargument of this case has conceded, that the District Court was mistaken in holding that Plan II could be rejected under § 5 solely because it did not eliminate the two at-large councilmanic seats that had existed since 1954. The appellants and the United States are correct in their interpretation of the statute in this regard.The language of § 5 clearly provides that it applies only to proposed changes in voting procedures. "[D]iscriminatory practices . . . instituted prior to November, 1964 . . . are not subject to the requirement of preclearance [under § 5]." U.S. Commission on Civil Rights, The Voting Rights Act: Ten Years After, p. 347. The ordinance that adopted Plan II made no reference to the at-large councilmanic seats. Indeed, since those seats had been established in 1954 by the city charter, an ordinance could not have altered them; any change in Page 425 U. S. 139 the charter would have required approval by the city' voters. The at-large seats, having existed without change since 1954, were not subject to review in this proceeding under § 5. [Footnote 10]BThe principal argument made by the appellants in this Court is that the District Court erred in concluding that the makeup of the five geographic councilmanic districts under Plan II would have the effect of abridging voting rights on account of race or color. In evaluating this claim, it is important to note at the outset that the question is not one of constitutional law, but of statutory construction. [Footnote 11] A determination of when a legislative reapportionment has "the effect of denying or abridging the right to vote on account of race or color" must depend, therefore, upon the intent of Page 425 U. S. 140 Congress in enacting the Voting Rights Act, and specifically § 5.The legislative history reveals that the basic purpose of Congress in enacting the Voting Rights Act was "to rid the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. at 383 U. S. 315. Section 5 was intended to play an important role in achieving that goal:"Section 5 was a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. That practice had been possible because each new law remained in effect until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory. . . . Congress therefore decided, as the Supreme Court held it could, 'to shift the advantage of time and inertia from the perpetrators of the evil to its victim' by 'freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.'"H.R.Rep. No. 94-196, pp. 57-58. (Footnotes omitted.) See also H.R.Rep. No. 439, 89th Cong., 1st Sess., 9-11, 26; S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 6-9, 24; H.R.Rep. No. 91-397, pp. 6-8; H.R.Rep. No. 94-196, pp. 8-11, 57-60; S.Rep. No. 94-295, pp. 15-19; South Carolina v. Katzenbach, supra at 383 U. S. 335.By prohibiting the enforcement of a voting-procedure change until it has been demonstrated to the United States Department of Justice or to a three-judge federal court that the change does not have a discriminatory effect, Congress desired to prevent States from "undo[ing] or defeat[ing] the rights recently won" by Negroes. H.R.Rep. No. 91-397, p. 8. Section 5 was intended Page 425 U. S. 141"to insure that [the gains thus far achieved in minority political participation] shall not be destroyed through new [discriminatory] procedures and techniques."S.Rep. No. 94-295, p. 19.When it adopted a 7-year extension of the Voting Rights Act in 1975, Congress explicitly stated that"the standard [under § 5] can only be fully satisfied by determining on the basis of the facts found by the Attorney General [or the District Court] to be true whether the ability of minority groups to participate in the political process and to elect their choices to office is augmented, diminished, or not effected by the change affecting voting. . . ."H.R.Rep. No. 9196, p. 60 (emphasis added). [Footnote 12] In other words, the purpose of § 5 has always been to insure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.It is thus apparent that a legislative reapportionment that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise can hardly have the "effect" of diluting or abridging the right to vote on account of race within the meaning of § 5. We conclude, therefore, that such an ameliorative new legislative apportionment cannot violate § 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution.The application of this standard to the facts of the present case is straightforward. Under the apportionment of 1961, none of the five councilmanic districts had a clear Negro majority of registered voters, and no Negro Page 425 U. S. 142 has been elected to the New Orleans City Council while that apportionment system has been in effect. Under Plan II, by contarst, Negroes will constitute a majority of the population in two of the five districts and a clear majority of the registered voters in one of them. Thus, there is every reason to predict, upon the District Court's hypothesis of bloc voting, that at least one and perhaps two Negroes may well be elected to the council under Plan II. [Footnote 13] It was therefore error for the District Court to conclude that Plan II "will . . . have the effect of denying or abridging the right to vote on account of race or color" within the meaning of § 5 of the Voting Rights Act. [Footnote 14] Page 425 U. S. 143Accordingly, the judgment of the District Court is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtBeer v. United States, 425 U.S. 130 (1976)Beer v. United StatesNo. 73-1869Argued March 26, 1975Reargued November 12, 1975Decided March 30, 1976425 U.S. 130SyllabusThe 1954 New Orleans City Charter provides for a seven-member city council, with one member being elected from each of five councilmanic districts, and two being elected by the voters of the city at large. In 1961 the council, as it was required to do after each decennial census, redistricted the city based on the 1960 census so that, in one councilmanic district, Negroes constituted a majority of the population, but only about half of the registered voters, and, in the other four districts, white voters outnumbered Negroes. No Negro was elected to the council from 1960 to 1970. After the 1970 census, the council devised a reapportionment plan, under which there would be Negro population majorities in two councilmanic districts and a Negro voter majority in one. Section 5 of the Voting Rights Act of 1965 prohibits a State or political subdivision subject to § 4 of the Act (as New Orleans is) from enforcing a proposed change in voting procedures unless it has obtained a declaratory judgment from the District Court of the District of Columbia that such change "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" or has submitted the change to the Attorney General and he has not objected to it. After the proposed plan had been objected to by the Attorney General, New Orleans sought a declaratory judgment in the District Court. That court refused to allow the plan to go into effect, holding that it would have the effect of abridging Negro voting rights, and that, moreover, the plan's failure to alter the city charter provision for two at-large seats in itself had such effect.Held:1. Since § 5's language clearly provides that it applies only to proposed changes in voting procedures, and since the at-large seats existed without change since 1954, those seats were not subject to review under § 5. The District Court consequently erred in holding that the plan could be rejected under § 5 solely because it did not eliminate the two at-large seats. Pp. 425 U. S. 138-139.2. A legislative reapportionment that enhances the position of racial minorities with respect to their effective exercise of the Page 425 U. S. 131 electoral franchise cannot violate § 5 unless the new apportionment itself so discriminates racially as to violate the Constitution. Applying this standard here, where, in contrast to the 1961 apportionment under which none of the five councilmanic districts had a clear Negro voting majority and no Negro had been elected to the council, Negroes under the plan in question will constitute a population majority in two of the five districts and a clear voting majority in one, it is predictable that, by bloc voting, one and perhaps two Negroes will be elected to the council. The District Court therefore erred in concluding that the plan would have the effect of denying or abridging the right to vote on account of race or color within the meaning of § 5. Pp. 425 U. S. 139-142.374 F. Supp. 363, vacated and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, post, p. 425 U. S. 143. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 425 U. S. 145. STEVENS, J., took no part in the consideration or decision of the case.

1999_99-387

ing Assistant Attorney General Junghans, Kent L. Jones, Kenneth L. Greene, and Steven W Parks. *JUSTICE SOUTER delivered the opinion of the Court.The question raised here is who bears the burden of proof on a tax claim in bankruptcy court when the substantive law creating the tax obligation puts the burden on the taxpayer (in this case, the trustee in bankruptcy). We hold that bankruptcy does not alter the burden imposed by the substantive law.IThe issue of state tax liability in question had its genesis in the purchase of an airplane by Chandler Enterprises, Inc., a now-defunct Illinois company. William J. Stoecker, for whom petitioner Raleigh is the trustee in bankruptcy, was president of Chandler in 1988, when Chandler entered into a lease-purchase agreement for the plane, moved it to Illinois,*Briefs of amici curiae urging affirmance were filed for the Pension Benefit Guaranty Corporation by James J. Keightley, William G. Beyer, Israel Goldowitz, Nathaniel Rayle, and Charles G. Cole; for the State of New Mexico et al. by Patricia A. Madrid, Attorney General of New Mexico, Donald F. Harris, Special Assistant Attorney General, and James I. Shepard, joined by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Hatch of Minnesota, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Jan Graham of Utah, William H. Sorrell of Vermont, Christine Q Gregoire of Washington, and Gay Woodhouse of Wyoming; and for the Council of State Governments et al. by Richard Ruda, James I. Crowley, and Steven H. Goldblatt.18and ultimately took title under the agreement. See In re Stoecker, 179 F.3d 546, 548 (CA7 1999).According to respondent State Department of Revenue, the transaction was subject to the Illinois use tax, a sales-tax substitute imposed on Illinois residents such as Chandler who buyout of State. If the seller does not remit the tax, the buyer must, and, when buying a plane, must file a return and pay the tax within 30 days after the aircraft enters the State. Ill. Compo Stat., ch. 35, § 105/10 (1999). Chandler failed to do this.When the State discovers a failure to file and pay taxes, its Department of Revenue (the respondent here) determines the amount of tax due and issues a Notice of Tax Liability to the taxpayer. §§ 105/12, 120/4. Unless the taxpayer protests within the time provided, the assessment becomes final, though still subject to judicial review in the Illinois circuit court. §§ 120/4, 12.Illinois law also provides that any corporate officer "who has the control, supervision or responsibility of filing returns and making payment of the amount of any ... tax ... who wilfully fails to file the return or make the payment ... shall be personally liable for a penalty equal to the total amount of tax unpaid by the [corporation]." § 735/3-7. The department determines the amount, and its determination is "prima facie evidence of a penalty due," ibid., though a Notice of Penalty Liability issued under this provision is open to challenge much like the antecedent Notice of Tax Liability.By the time the department discovered the unpaid tax in this case, Chandler was defunct and Stoecker was in bankruptcy. The department issued both a Notice of Tax Liability against Chandler and a Notice of Penalty Liability against Stoecker. See 179 F. 3d, at 549.The record evidence about Chandler's operations is minimal. A person named Pluhar acted as its financial officer.19There is no evidence directly addressing Stoecker's role in the filing of Chandler's tax returns or the payment of any taxes, and so no affirmative proof that he either was responsible for or willfully evaded the payment of the use tax, see id., at 550. This evidentiary dearth is not necessarily dispositive, however, due to the provision of Illinois law shifting the burden of proof, on both production and persuasion, to the responsible officer once a Notice of Penalty Liability is issued, see Branson v. Department of Revenue, 168 Ill. 2d 247, 256-261, 659 N. E. 2d 961, 966-968 (1995). The Court of Appeals for the Seventh Circuit accordingly ruled for the Department of Revenue. 179 F. 3d, at 550.The Court of Appeals thought the trustee may have satisfied his burden of production by identifying Pluhar as the financial officer but, in any event, had not satisfied his burden of persuasion. Because Stoecker was the president and, as far as the record showed, he and Pluhar were the only officers, each would have been involved in Chandler's tax affairs. Ibid. While it is true that failure to pay must be willful (at least grossly negligent) to justify the penalty under Illinois law, see Branson, supra, at 254-255, 659 N. E. 2d, at 965, and true that Chandler had an opinion letter from a reputable lawyer that no tax was due because of certain details of the lease-purchase agreement, there was no evidence that Stoecker ever saw the letter or relied on it, and nothing else bearing on the issue of willfulness. See 179 F. 3d, at 550-551.Obviously, the burden of proof was critical to the resolution of the case, which the Department of Revenue won because the Court of Appeals held that the burden remained on the trustee, just as it would have been on the taxpayer had the proceedings taken place outside of bankruptcy. The Courts of Appeals are divided on this point: the Seventh Circuit joined the Third and Fourth Circuits in leaving the burden on the taxpayer. See Resyn Corp. v. United States,20851 F.2d 660, 663 (CA3 1988); In re Landbank Equity Corp., 973 F.2d 265, 270-271 (CA4 1992). The Courts of Appeals for the Fifth, Eighth, Ninth, and Tenth Circuits have come out the other way. See In re Placid Oil Co., 988 F.2d 554, 557 (CA5 1993); In re Brown, 82 F.3d 801, 804-805 (CA8 1996); In re Macfarlane, 83 F.3d 1041, 1044-1045 (CA9 1996), cert. denied, 520 U. S. 1115 (1997); In re Fullmer, 962 F.2d 1463, 1466 (CAlO 1992). We granted certiorari to resolve the issue, 528 U. S. 1068 (2000), and now affirm.IICreditors' entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor's obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code. See Butner v. United States, 440 U. S. 48, 55 (1979); Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156, 161-162 (1946). The "basic federal rule" in bankruptcy is that state law governs the substance of claims, Butner, supra, at 57, Congress having "generally left the determination of property rights in the assets of a bankrupt's estate to state law," 440 U. S., at 54 (footnote omitted). "Unless some federal interest requires a different result, there is no reason why [the state] interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding." Id., at 55. In this case, the bankruptcy estate's obligation to the Illinois Department of Revenue is established by that State's tax code, which puts the burden of proof on the responsible officer of the taxpayer, see Branson, supra, at 260-262, 659 N. E. 2d, at 968.The scope of the obligation is the issue here. Do the State's right and the taxpayer's obligation include the burden of proof? Our cases point to an affirmative answer. Given its importance to the outcome of cases, we have long held the burden of proof to be a "substantive" aspect of a21claim. See, e. g., Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 271 (1994); Dick v. New York Life Ins. Co., 359 U. S. 437, 446 (1959); Garrett v. Moore-McCormack Co., 317 U. S. 239, 249 (1942). That is, the burden of proof is an essential element of the claim itself; one who asserts a claim is entitled to the burden of proof that normally comes with it.Tax law is no candidate for exception from this general rule, for the very fact that the burden of proof has often been placed on the taxpayer indicates how critical the burden rule is, and reflects several compelling rationales: the vital interest of the government in acquiring its lifeblood, revenue, see Arkansas v. Farm Credit Servs. of Central Ark., 520 U. S. 821, 826 (1997); the taxpayer's readier access to the relevant information, see United States v. Rexach, 482 F.2d 10, 16 (CA1), cert. denied, 414 U. S. 1039 (1973); and the importance of encouraging voluntary compliance by giving taxpayers incentives to self-report and to keep adequate records in case of dispute, see United States v. Bisceglia, 420 U. S. 141, 145 (1975). These are powerful justifications not to be disregarded lightly.lCongress of course may do what it likes with entitlements in bankruptcy, but there is no sign that Congress meant to alter the burdens of production and persuasion on tax claims. The Code in several places, to be sure, establishes particular burdens of proof. See, e. g., 11 U. S. C. § 362(g) (relief from automatic stay), § 363(0) (adequate protection for creditors),1 It is true that a trustee may have less access to the facts than a taxpayer with personal knowledge, but the trustee takes custody of the taxpayer's records, see 11 U. S. C. § 521(4), and may have greater access to the taxpayer than a creditor. Even if the trustee's advantage is somewhat less than the original taxpayer's, the difference hardly overcomes the compelling justifications for shifting the burden of proof. The government, of course, is in no better position than it ever was, and remains without access to sources of proof when the taxpayer has not kept sufficient documentation.22§ 364(d)(2) (same), § 547(g) (avoidability of preferential transfer), § 1129(d) (confirmation of plan for purpose of avoiding taxes). But the Code makes no provision for altering the burden on a tax claim, and its silence says that no change was intended.2IIIThe trustee looks for an advantage in the very silence of the Code, however, first by arguing that actual, historical practice favored trustees under the Bankruptcy Act of 1898 and various pre-Code revisions up to the current Code's enactment in 1978. He says that courts operating in the days of the Bankruptcy Act, which was silent on the burden to prove the validity of claims, almost uniformly placed the burden on those seeking a share of the bankruptcy estate. Because the Code generally incorporates pre-Code practice in the absence of explicit revision, the argument goes, and because the Code is silent here, we should follow the preCode practice even when this would reverse the burden imposed outside bankruptcy. This tradition makes sense, petitioner urges, because in bankruptcy tax authorities are no longer opposed to the original taxpayer, and the choice is no longer merely whether the tax claim is paid but whether other innocent creditors must share the bankruptcy estate with the taxing government.We, however, find history less availing to the trustee than he says. While some pre-Code cases put the burden of proof2 The legislative history indicates that the burden of proof on the issue of establishing claims was left to the Rules of Bankruptcy Procedure. See S. Rep. No. 95-989, p. 62 (1978); H. R. Rep. No. 95-595, p. 352 (1977). The Bankruptcy Rules are silent on the burden of proof for claims; while Federal Rule of Bankruptcy Procedure 3001(f) provides that a proof of claim (the name for the proper form for filing a claim against a debtor) is "prima facie evidence of the validity and amount of the claim," this rule does not address the burden of proof when a trustee disputes a claim. The Rules thus provide no additional guidance.23on taxing authorities,3 others put it on the trustee,4 and still others cannot be fathomed.5 This state of things is the end of the argument, for without the weight of solid authority on the trustee's side, we cannot treat the Code as predicated on an alteration of the substantive law of obligations once a taxpayer enters bankruptcy. Cf. United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 381-382 (1988) ("The at best divided [pre-Code] authority ... removes all cause for wonder that the alleged departure from it should not have been commented upon in the legislative history").The trustee makes a different appeal to Code silence in pointing to language in Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156 (1946), suggesting that "allowance" of claims is a federal matter. But "allowance" referred to the ordering of valid claims when that case was decided, see id., at 162-163, and Vanston, in fact, concerned3 See, e. g., United States v. Sampsell, 224 F.2d 721, 722-723 (CA9 1955); In re Avien, Inc., 390 F. Supp. 1335, 1341-1342 (EDNY 1975), aff'd, 532 F.2d 273 (CA2 1976); In re Gorgeous Blouse Co., 106 F. Supp. 465 (SDNY 1952); see also In re Highway Constr. Co., 105 F.2d 863, 866 (CA6 1939) (apparently accepting lower court's placement of burden of proof on tax authority).4 See, e. g., In re Uneco, Inc., 532 F.2d 1204, 1207 (CA8 1976); Paschal v. Blieden, 127 F.2d 398, 401-402 (CA8 1942); In re Lang Body Co., 92 F. 2d 338, 341 (CA6 1937), cert. denied sub nom. Hipp v. Boyle, 303 U. S. 637 (1938); United States v. Knox-Powell-Stockton Co., 83 F.2d 423, 425 (CA9), cert. denied, 299 U. S. 573 (1936). Some of these cases, such as Paschal and Lang Body Co., appear to confuse the burden of production (which ceases to be relevant upon presentation of a trustee's case) with the burden of persuasion, under tax statutes that shift the entire burden of proof to the taxpayer. Whatever we make of their reasoning, these cases do not follow the rule whose pedigree petitioner wishes to establish.5 See, e. g., Fiori v. Rothensies, 99 F.2d 922 (CA3 1938) (per curiam) (discussing prima facie value of tax authority's claim, but failing to discuss burden of proof); Dickinson v. Riley, 86 F.2d 385 (CA8 1936) (resolving claim without reference to burden of proof); In re Clayton Magazines, Inc., 77 F.2d 852 (CA2 1935) (same).24distribution of assets, not the validity of claims in the first instance, see In re Highland Superstores, Inc., 154 F.3d 573, 578 (CA6 1998); Fahs v. Martin, 224 F.2d 387, 394-395 (CA5 1955). The burden of proof rule in question here bears only on validity, and as to that the Vanston opinion specifically states that "[w]hat claims of creditors are valid and subsisting obligations ... is to be determined by reference to state law." 329 U. S., at 161 (footnote omitted). Nor is the trustee helped by City of New York v. Saper, 336 U. S. 328, 332 (1949), which mentions "prov[ing]" government claims in the same manner as other debts; the reference was to the procedure by which proof of claim was submitted and not to the validity of the claim. While it is true that federal law has generally evolved to impose the same procedural requirements for claim submission on tax authorities as on other creditors, ibid., nothing in that evolution has touched the underlying laws on the elements sufficient to prove a valid state claim.Finally, the trustee argues that the Code-mandated priority enjoyed by taxing authorities over other creditors, see 11 U. S. C. §§ 507(a), 503(b)(1)(B), requires a compensating equality of treatment when it comes to demonstrating validity of claims. But we think his argument distorts the legitimate powers of a bankruptcy court and begs the question about the relevant principle of equality.Bankruptcy courts do indeed have some equitable powers to adjust rights between creditors. See, e. g., § 510(c) (equitable subordination). That is, within the limits of the Code, courts may reorder distributions from the bankruptcy estate, in whole or in part, for the sake of treating legitimate claimants to the estate equitably. But the scope of a bankruptcy court's equitable power must be understood in the light of the principle of bankruptcy law discussed already, that the validity of a claim is generally a function of underlying substantive law. Bankruptcy courts are not authorized in the name of equity to make wholesale substitution25of underlying law controlling the validity of creditors' entitlements, but are limited to what the Bankruptcy Code itself provides. See United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 228-229 (1996); United States v. Noland, 517 U. S. 535, 543 (1996).Moreover, even on the assumption that a bankruptcy court were to have a free hand, the case for a rule placing the burden of proof uniformly on all bankruptcy creditors is not self-evidently justified by the trustee's invocation of equality. Certainly the trustee has not shown that equal treatment of all bankruptcy creditors in proving debts is more compelling than equal treatment of comparable creditors in and out of bankruptcy. The latter sort of equality can be provided by a bankruptcy court as a matter of course, whereas the trustee's notion of equality could not be uniformly observed consistently with other bankruptcy principles. Consider the case when tax litigation is pending at the time the taxpayer files for bankruptcy. The tax litigation will be subject to an automatic stay, but the stay can be lifted by the bankruptcy court for cause, see 11 U. S. C. § 362(d)(1), which could well include, among other things, a lack of good faith in attempting to avoid tax proceedings, or in attempting to favor private creditors who might escape the disadvantage of a priority tax claim under the trustee's proposed rule. See generally 3 Collier on Bankruptcy ~ 362.07[6][a], pp. 362-101 to 362-102 (rev. 15th ed. 2000) (noting that bad faith commencement of case justifies lifting stay); Internal Revenue Service v. Bacha, 166 B. R. 611, 612 (Bkrtcy. Ct. Md. 1993) (lifting automatic stay when bankruptcy filing was attempt to avoid tax proceedings). If the bankruptcy court exercises its discretion to lift the stay, the burden of proof will be on the taxpayer in the pre-existing tax litigation, and a tax liability determination will be final. See 11 U. S. C. § 505(a)(2)(A). We see no reason that Congress would have intended the burden of proof (and consequent vindication of this trustee's vision of equality) to depend on whether26tax authorities have initiated proceedings against a debtor before a bankruptcy filing. Thus, the uncertainty and increased complexity that would be generated by the trustee's position is another reason to stick with the simpler rule, that in the absence of modification expressed in the Bankruptcy Code the burden of proof on a tax claim in bankruptcy remains where the substantive tax law puts it.The judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1999SyllabusRALEIGH, CHAPTER 7 TRUSTEE FOR THE ESTATE OF STOECKER v. ILLINOIS DEPARTMENTOF REVENUECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 99-387. Argued April 17, 2000-Decided May 30, 2000While debtor Stoecker was its president, a now-defunct Illinois company purchased a plane out of State and moved it to Illinois. Respondent claims that this purchase was subject to the State's use tax. When such tax is unpaid, respondent issues a Notice of Tax Liability to the taxpayer and may issue a Notice of Penalty Liability against any corporate officer responsible for paying the tax who willfully fails to file the return or make the payment. By the time respondent discovered that the tax was unpaid in this case, the company was defunct and Stoecker was in bankruptcy, with petitioner as his trustee. Respondent filed, inter alia, a Notice of Penalty Liability against Stoecker. The fact that there was no affirmative proof that he was responsible for or willfully evaded the payment was not dispositive, for Illinois law shifts the burden of proof, both on production and persuasion, to the responsible officer once a Notice of Penalty Liability is issued. The Seventh Circuit ruled for respondent, holding that the burden of proof remained with petitioner, just as it would have been on Stoecker had the proceedings taken place outside of bankruptcy, and finding that petitioner had not satisfied the burden of persuasion.Held: When the substantive law creating a tax obligation puts the burden of proof on a taxpayer, the burden of proof on the tax claim in bankruptcy court remains where the substantive law put it (in this case, on the trustee in bankruptcy). Pp.20-26.(a) Creditors' entitlements in bankruptcy arise from the underlying substantive law creating the debtor's obligation, subject to any qualifying or contrary Bankruptcy Code provisions. See Butner v. United States, 440 U. S. 48, 55. The basic federal rule in bankruptcy is that state law governs the substance of claims. Id., at 57. In this case, Illinois tax law establishes the estate's obligation to respondent, placing the burden of proof on the responsible officer. That burden of proof is a substantive aspect of such a claim, given its importance to the outcome of cases. See, e. g., Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 271. Tax law is no candidate for exception from the general rule, for the very fact that the16burden has often been shifted to the taxpayer indicates how critical it is. Several compelling rationales for this shift-the government's vital interest in acquiring its revenue, the taxpayer's readier access to the relevant information, and the importance of encouraging voluntary compliance-are powerful justifications not to be disregarded lightly. The Bankruptcy Code makes no provision for altering the burden of proof on a tax claim, and its silence indicates that no change was intended. Pp.20-22.(b) The trustee's appeals to Code silence are rejected. The state of pre-Code law does not indicate that the Code is silent because it was predicated on an alteration of the substantive law of obligations once a taxpayer enters bankruptcy. And although Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156, suggested that "allowance" of claims is a federal matter, that case concerned distribution of assets, not the validity of claims in the first instance, which, Vanston specifically states, is to be determined by reference to state law, id., at 161. Nor is the trustee helped by the reference, in City of New York v. Saper, 336 U. S. 328, 332, to "prov[ing]" government claims in the same manner as other debts, for that reference was to the procedure by which proof of claim was submitted, not to the validity of the claim. Finally, the trustee's argument that the Code-mandated priority enjoyed by taxing authorities over other creditors requires a compensating equality of treatment when it comes to demonstrating validity of claims distorts a bankruptcy court's legitimate powers and begs the question about the relevant principle of equality. Pp. 22-26.179 F.3d 546, affirmed.SOUTER, J., delivered the opinion for a unanimous Court.Robert Radasevich argued the cause for petitioner. With him on the briefs were Phil C. Neal, David A. Eide, and John W Guarisco.A. Benjamin Goldgar, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were James E. Ryan, Attorney General, Joel D. Bertocchi, Solicitor General, and James D. Newbold, Assistant Attorney General.Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Waxman, Act-17Full Text of Opinion

1994_94-5707

JUSTICE THOMAS delivered the opinion of the Court.At the time of the framing, the common law of search and seizure recognized a law enforcement officer's authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law "knock and announce" principle forms a part of the reasonableness inquiry under the Fourth Amendment.IDuring November and December 1992, petitioner Sharlene Wilson made a series of narcotics sales to an informant acting at the direction of the Arkansas State Police. In late November, the informant purchased marijuana and methamphetamine at the home that petitioner shared with Bryson Jacobs. On December 30, the informant telephoned petitioner at her home and arranged to meet her at a local store to buy some marijuana. According to testimony presented below, petitioner produced a semiautomatic pistol at this meeting and waved it in the informant's face, threatening to kill her if she turned out to be working for the police. Petitioner then sold the informant a bag of marijuana.The next day, police officers applied for and obtained warrants to search petitioner's home and to arrest both petitioner and Jacobs. Affidavits filed in support of the warrants set forth the details of the narcotics transactions and stated that Jacobs had previously been convicted of arson and firebombing. The search was conducted later that afternoon. Police officers found the main door to petitioner's home open. While opening an unlocked screen door and entering the residence, they identified themselves as police officers and stated that they had a warrant. Once inside the home, the officers seized marijuana, methamphetamine, valium, narcotics paraphernalia, a gun, and ammunition. They also found petitioner in the bathroom, flushing marijuana down the toilet. Petitioner and Jacobs were arrested and930charged with delivery of marijuana, delivery of methamphetamine, possession of drug paraphernalia, and possession of marijuana.Before trial, petitioner filed a motion to suppress the evidence seized during the search. Petitioner asserted that the search was invalid on various grounds, including that the officers had failed to "knock and announce" before entering her home. The trial court summarily denied the suppression motion. After a jury trial, petitioner was convicted of all charges and sentenced to 32 years in prison.The Arkansas Supreme Court affirmed petitioner's conviction on appeal. 317 Ark. 548, 878 S. W. 2d 755 (1994). The court noted that "the officers entered the home while they were identifying themselves," but it rejected petitioner's argument that "the Fourth Amendment requires officers to knock and announce prior to entering the residence." Id., at 553, 878 S. W. 2d, at 758 (emphasis added). Finding "no authority for [petitioner's] theory that the knock and announce principle is required by the Fourth Amendment," the court concluded that neither Arkansas law nor the Fourth Amendment required suppression of the evidence. Ibid.We granted certiorari to resolve the conflict among the lower courts as to whether the common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry.l 513 U. S. 1014 (1995). We hold that it does, and accordingly reverse and remand.1 See, e. g., People v. Gonzalez, 211 Cal. App. 3d 1043, 1048, 259 Cal.Rptr. 846, 848 (1989) ("Announcement and demand for entry at the time of service of a search warrant [are] part of Fourth Amendment reasonableness"); People v. Saechao, 129 Ill. 2d 522, 531, 544 N. E. 2d 745,749 (1989) ("[T]he presence or absence of such an announcement is an important consideration in determining whether subsequent entry to arrest or search is constitutionally reasonable") (internal quotation marks omitted); Commonwealth v. Goggin, 412 Mass. 200, 202, 587 N. E. 2d 785, 787 (1992) ("Our knock and announce rule is one of common law which is not constitutionally compelled").931IIThe Fourth Amendment to the Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In evaluating the scope of this right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. See California v. Hodari D., 499 U. S. 621, 624 (1991); United States v. Watson, 423 U. S. 411, 418420 (1976); Carroll v. United States, 267 U. S. 132, 149 (1925). "Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable," New Jersey v. T. L. 0., 469 U. S. 325, 337 (1985), our effort to give content to this term may be guided by the meaning ascribed to it by the Framers of the Amendment. An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.Although the common law generally protected a man's house as "his castle of defence and asylum," 3 W. Blackstone, Commentaries *288 (hereinafter Blackstone), common-law courts long have held that "when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K[ing]'s process, if otherwise he cannot enter." Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K. B. 1603). To this rule, however, common-law courts appended an important qualification:"But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors ... , for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no932default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it .... " Ibid., 77 Eng. Rep., at 195-196.See also Case of Richard Curtis, Fost. 135, 137, 168 Eng. Rep. 67, 68 (Crown 1757) ("[N]o precise form of words is required in a case of this kind. It is sufficient that the party hath notice, that the officer cometh not as a mere trespasser, but claiming to act under a proper authority ... "); Lee v. Gansell, Lofft 374, 381-382, 98 Eng. Rep. 700, 705 (K. B. 1774) ("[A]s to the outer door, the law is now clearly taken" that it is privileged; but the door may be broken "when the due notification and demand has been made and refused").2Several prominent founding-era commentators agreed on this basic principle. According to Sir Matthew Hale, the "constant practice" at common law was that "the officer may break open the door, if he be sure the offender is there, if after acquainting them of the business, and demanding the prisoner, he refuses to open the door." See 1 M. Hale, Pleas of the Crown *582. William Hawkins propounded a similar principle: "the law doth never allow" an officer to break open the door of a dwelling "but in cases of necessity," that is, unless he "first signify to those in the house the cause of his coming, and request them to give him admittance." 2 W. Hawkins, Pleas of the Crown, ch. 14, § 1, p. 138 (6th ed. 1787).2 This "knock and announce" principle appears to predate even Semayne's Case, which is usually cited as the judicial source of the commonlaw standard. Semayne's Case itself indicates that the doctrine may be traced to a statute enacted in 1275, and that at that time the statute was "but an affirmance of the common law." 5 Co. Rep., at 91b, 77 Eng. Rep., at 196 (referring to 3 Edw. I, ch. 17, in 1 Statutes at Large from Magna Carta to Hen. 6 (0. Ruffhead ed. 1769) (providing that if any person takes the beasts of another and causes them "to be driven into a Castle or Fortress," if the sheriff makes "solem[n] deman[d]" for deliverance of the beasts, and if the person "did not cause the Beasts to be delivered incontinent," the King "shall cause the said Castle or Fortress to be beaten down without Recovery")).933Sir William Blackstone stated simply that the sheriff may "justify breaking open doors, if the possession be not quietly delivered." 3 Blackstone *412.The common-law knock and announce principle was woven quickly into the fabric of early American law. Most of the States that ratified the Fourth Amendment had enacted constitutional provisions or statutes generally incorporating English common law, see, e. g., N. J. Const. of 1776, § 22, in 5 Federal and State Constitutions 2598 (F. Thorpe ed. 1909) ("[T]he common law of England ... shall still remain in force, until [it] shall be altered by a future law of the Legislature"); N. Y. Const. of 1777, Art. 35, in id., at 2635 ("[S]uch parts of the common law of England ... as ... did form the law of [New York on April 19, 1775] shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same"); Ordinances of May 1776, ch. 5, § 6, in 9 Statutes at Large of Virginia 127 (w. Hening ed. 1821) ("[T]he common law of England ... shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony"), and a few States had enacted statutes specifically embracing the common-law view that the breaking of the door of a dwelling was permitted once admittance was refused, see, e. g., Act of Nov. 8, 1782, ch. 15, , 6, in Acts and Laws of Massachusetts 193 (1782); Act of Apr. 13, 1782, ch. 39, § 3, in 1 Laws of the State of New York 480 (1886); Act of June 24, 1782, ch. 317, § 18, in Acts of the General Assembly of New-Jersey (1784) (reprinted in The First Laws of the State of New Jersey 293-294 (J. Cushing compo 1981)); Act of Dec. 23, 1780, ch. 925, § 5, in 10 Statutes at Large of Pennsylvania 255 (J. Mitchell & H. Flanders compo 1904). Early American courts similarly embraced the common-law knock and announce principle. See, e. g., Walker v. Fox, 32 Ky. 404, 405 (1834); Burton v. Wilkinson, 18 Vt. 186, 189 (1846); Howe v. Butterfield, 58 Mass. 302, 305 (1849). See generally Blakey, The934Rule of Announcement and Unlawful Entry, 112 U. Pa. L. Rev. 499, 504-508 (1964) (collecting cases).Our own cases have acknowledged that the common-law principle of announcement is "embedded in Anglo-American law," Miller v. United States, 357 U. S. 301, 313 (1958), but we have never squarely held that this principle is an element of the reasonableness inquiry under the Fourth Amendment.3 We now so hold. Given the longstanding common-law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer's entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure. Contrary to the decision below, we hold that in some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment.This is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests. As even petitioner concedes, the common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances. See Ker v. California, 374 U. S. 23, 38 (1963) (plurality opinion) ("[I]t has been recognized from the early common law that ... breaking is permissible in executing an arrest under certain circumstances"); see also, e. g.,3 In Miller, our discussion focused on the statutory requirement of announcement found in 18 U. S. C. § 3109 (1958 ed.), not on the constitutional requirement of reasonableness. See 357 U. S., at 306, 308, 313. See also Sabbath v. United States, 391 U. S. 585, 591, n. 8 (1968) (suggesting that both the "common law" rule of announcement and entry and its "exceptions" were codified in §3109); Ker v. California, 374 U. S. 23, 40-41 (1963) (plurality opinion) (reasoning that an unannounced entry was reasonable under the "exigent circumstances" of that case, without addressing the antecedent question whether the lack of announcement might render a search unreasonable under other circumstances).935White & Wiltsheire, 2 Rolle 137, 138, 81 Eng. Rep. 709, 710 (K. B. 1619) (upholding the sheriff's breaking of the door of the plaintiff's dwelling after the sheriff's bailiffs had been imprisoned in plaintiff's dwelling while they attempted an earlier execution of the seizure); Pugh v. Griffith, 7 Ad. & E. 827, 840-841, 112 Eng. Rep. 681, 686 (K. B. 1838) (holding that "the necessity of a demand ... is obviated, because there was nobody on whom a demand could be made" and noting that White & Wiltsheire leaves open the possibility that there may be "other occasions where the outer door may be broken" without prior demand).Indeed, at the time of the framing, the common-law admonition that an officer "ought to signify the cause of his coming," Semayne's Case, 5 Co. Rep., at 91b, 77 Eng. Rep., at 195, had not been extended conclusively to the context of felony arrests. See Blakey, supra, at 503 ("The full scope of the application of the rule in criminal cases ... was never judicially settled"); Launock v. Brown, 2 B. & Ald. 592, 593, 106 Eng. Rep. 482, 483 (K. B. 1819) ("It is not at present necessary for us to decide how far, in the case of a person charged with felony, it would be necessary to make a previous demand of admittance before you could justify breaking open the outer door of his house"); W. Murfree, Law of Sheriffs and Other Ministerial Officers § 1163, p. 631 (1st ed. 1884) ("[A]lthough there has been some doubt on the question, the better opinion seems to be that, in cases of felony, no demand of admittance is necessary, especially as, in many cases, the delay incident to it would enable the prisoner to escape"). The common-law principle gradually was applied to cases involving felonies, but at the same time the courts continued to recognize that under certain circumstances the presumption in favor of announcement necessarily would give way to contrary considerations.Thus, because the common-law rule was justified in part by the belief that announcement generally would avoid "the destruction or breaking of any house ... by which great936damage and inconvenience might ensue," Semayne's Case, supra, at 91b, 77 Eng. Rep., at 196, courts acknowledged that the presumption in favor of announcement would yield under circumstances presenting a threat of physical violence. See, e. g., Read v. Case, 4 Conn. 166, 170 (1822) (plaintiff who "had resolved ... to resist even to the shedding of blood ... was not within the reason and spirit of the rule requiring notice"); Mahomed v. The Queen, 4 Moore 239, 247, 13 Eng. Rep. 293, 296 (P. C. 1843) ("While he was firing pistols at them, were they to knock at the door, and to ask him to be pleased to open it for them? The law in its wisdom only requires this ceremony to be observed when it possibly may be attended with some advantage, and may render the breaking open of the outer door unnecessary"). Similarly, courts held that an officer may dispense with announcement in cases where a prisoner escapes from him and retreats to his dwelling. See, e. g., ibid.; Allen v. Martin, 10 Wend. 300, 304 (N. Y. Sup. Ct. 1833). Proof of "demand and refusal" was deemed unnecessary in such cases because it would be a "senseless ceremony" to require an officer in pursuit of a recently escaped arrestee to make an announcement prior to breaking the door to retake him. Id., at 304. Finally, courts have indicated that unannounced entry may be justified where police officers have reason to believe that evidence would likely be destroyed if advance notice were given. See Ker, supra, at 40-41 (plurality opinion); PeopleWe need not attempt a comprehensive catalog of the relevant countervailing factors here. For now, we leave to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment. We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry.937IIIRespondent contends that the judgment below should be affirmed because the unannounced entry in this case was justified for two reasons. First, respondent argues that police officers reasonably believed that a prior announcement would have placed them in peril, given their knowledge that petitioner had threatened a government informant with a semiautomatic weapon and that Mr. Jacobs had previously been convicted of arson and firebombing. Second, respondent suggests that prior announcement would have produced an unreasonable risk that petitioner would destroy easily disposable narcotics evidence.These considerations may well provide the necessary justification for the unannounced entry in this case. Because the Arkansas Supreme Court did not address their sufficiency, however, we remand to allow the state courts to make any necessary findings of fact and to make the determination of reasonableness in the first instance. The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.4It is so ordered

OCTOBER TERM, 1994SyllabusWILSON v. ARKANSASCERTIORARI TO THE SUPREME COURT OF ARKANSAS No. 94-5707. Argued March 28, 1995-Decided May 22,1995Petitioner was convicted on state-law drug charges after the Arkansas trial court denied her evidence-suppression motion, in which she asserted that the search of her home was invalid because, inter alia, the police had violated the common-law principle requiring them to announce their presence and authority before entering. The State Supreme Court affirmed, rejecting petitioner's argument that the common-law "knock and announce" principle is required by the Fourth Amendment.Held: The common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry. pp. 931-937.(a) An officer's unannounced entry into a home might, in some circumstances, be unreasonable under the Amendment. In evaluating the scope of the constitutional right to be secure in one's house, this Court has looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. Given the longstanding common-law endorsement of the practice of announcement, and the wealth of founding-era commentaries, constitutional provisions, statutes, and cases espousing or supporting the knock and announce principle, this Court has little doubt that the Amendment's Framers thought that whether officers announced their presence and authority before entering a dwelling was among the factors to be considered in assessing a search's reasonableness. Nevertheless, the common-law principle was never stated as an inflexible rule requiring announcement under all circumstances. Countervailing law enforcement interests-including, e. g., the threat of physical harm to police, the fact that an officer is pursuing a recently escaped arrestee, and the existence of reason to believe that evidence would likely be destroyed if advance notice were given-may establish the reasonableness of an unannounced entry. For now, this Court leaves to the lower courts the task of determining such relevant countervailing factors. Pp. 934-936.(b) Respondent's asserted reasons for affirming the judgment below-that the police reasonably believed that a prior announcement would have placed them in peril and would have produced an unreasonable risk that petitioner would destroy easily disposable narcotics evidence-may well provide the necessary justification for the unannounced entry in this case. The case is remanded to allow the state928Syllabuscourts to make the reasonableness determination in the first instance. P.937.317 Ark. 548, 878 S. W. 2d 755, reversed and remanded.THOMAS, J., delivered the opinion for a unanimous Court.John Wesley Hall, Jr., argued the cause and filed briefs for petitioner.Winston Bryant, Attorney General of Arkansas, argued the cause for respondent. With him on the briefs were Kent G. Holt, Vada Berger, and David R. Raupp, Assistant Attorneys General, and Andrew D. Leipold.Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, Paul A. Engelmayer, and Deborah Watson. **Tracey Maclin, Steven R. Shapiro, and Ephraim Margolin filed a brief for the American Civil Liberties Union et al. as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Richard Rochman, Assistant Attorney General, and Eleni M. Constantine, and by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Jim Ryan of Illinois, Tom Miller of Iowa, Carla J. Stovall of Kansas, Chris Gorman of Kentucky, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Jeremiah W "Jay" Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Deborah T. Poritz of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Betty Montgomery of Ohio, Theodore R. Kulongoski of Oregon, Jeffrey B. Pine of Rhode Island, Charlie Condon of South Carolina, Mark Bennett of South Dakota, Dan Morales of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, and James S. Gilmore III of Virginia; for Wayne County, Michigan, by John D. O'Hair and Timothy A. Baughman; and for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W Schmidt, James P. Manak, Richard M. Weintraub, Robert L. Deschamps, and Bernard J. Farber.929Full Text of Opinion

1976_75-1126

MR. JUSTICE WHITE delivered the opinion of the Court.Section 703(a)(1) of the Civil Rights Act of 1964, Title VII, 78 Stat. 255, 42 U.S.C. § 2000e-2(a)(i), makes it an unlawful employment practice for an employer to discriminate against an employee or a prospective employee on the basis of his or her religion. At the time of the events involved here, a guideline of the Equal Employment Opportunity Commission (EEOC), 29 CFR § 1605.1(b) (1968), required, as the Act itself now does, 42 U.S.C. § 2000e(j) (1970 ed., Supp. V), that an employer, short of "undue hardship," make "reasonable accommodations" to the religious needs of its employees. The issue in this case is the extent of the employer's obligation under Title VII to accommodate an employee whose religious beliefs prohibit him from working on Saturdays.IWe summarize briefly the facts found by the District Court. 375 F. Supp. 877 (WD Mo.1974).Petitioner Trans World Airlines (TWA) operates a large maintenance and overhaul base in Kansas City, Mo. On June 5, 1967, respondent Larry G. Hardison was hired by TWA to work as a clerk in the Stores Department at its Kansas City base. Because of its essential role in the Kansas City operation, the Stores Department must operate 24 hours per day, 365 days per year, and whenever an employee's job in that department is not filled, an employee must be Page 432 U. S. 67 shifted from another department, or a supervisor must cover the job, even if the work in other areas may suffer.Hardison, like other employees at the Kansas City base, was subject to a seniority system contained in a collective bargaining agreement [Footnote 1] that TWA maintains with petitioner International Association of Machinists and Aerospace Workers (IAM). [Footnote 2] The seniority system is implemented by the union steward through a system of bidding by employees for particular shift assignments as they become available. The most senior employees have first choice for job and shift assignments, and the most junior employees are required to work when the union steward is unable to find enough people willing to work at a particular time or in a particular job to fill TWA's needs.In the spring of 1968 Hardison began to study the religion known as the Worldwide Church of God. One of the tenets of that religion is that one must observe the Sabbath by refraining from performing any work from sunset on Friday until sunset on Saturday. The religion also proscribes work on certain specified religious holidays.When Hardison informed Everett Kussman, the manager of the Stores Department, of his religious conviction regarding Page 432 U. S. 68 observance of the Sabbath, Kussman agreed that the union steward should seek a job swap for Hardison or a change of days off; that Hardison would have his religious holidays off whenever possible if Hardison agreed to work the traditional holidays when asked; and that Kussman would try to find Hardison another job that would be more compatible with his religious beliefs. The problem was temporarily solved when Hardison transferred to the 11 p.m.-7 a.m. shift. Working this shift permitted Hardison to observe his Sabbath.The problem soon reappeared when Hardison bid for and received a transfer from Building 1, where he had been employed, to Building 2, where he would work the day shift. The two buildings had entirely separate seniority lists; and, while in Building 1, Hardison had sufficient seniority to observe the Sabbath regularly, he was second from the bottom on the Building 2 seniority list.In Building 2, Hardison was asked to work Saturdays when a fellow employee went on vacation. TWA agreed to permit the union to seek a change of work assignments for Hardison, but the union was not willing to violate the seniority provisions set out in the collective bargaining contract, [Footnote 3] and Hardison had insufficient seniority to bid for a shift having Saturdays off.A proposal that Hardison work only four days a week was rejected by the company. Hardison's job was essential, and, on weekends, he was the only available person on his shift to perform it. To leave the position empty would have impaired supply shop functions, which were critical to airline operations; to fill Hardison's position with a supervisor or an Page 432 U. S. 69 employee from another area would simply have undermanned another operation; and to employ someone not regularly assigned to work Saturdays would have required TWA to pay premium wages.When an accommodation was not reached, Hardison refused to report for work on Saturdays. A transfer to the twilight shift proved unavailing since that schedule still required Hardison to work past sundown on Fridays. After a hearing, Hardison was discharged on grounds of insubordination for refusing to work during his designated shift.Hardison, having first invoked the administrative remedy provided by Title VII, brought this action for injunctive relief in the United States District Court against TWA and IAM, claiming that his discharge by TWA constituted religious discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1). He also charged that the union had discriminated against him by failing to represent him adequately in his dispute with TWA and by depriving him of his right to exercise his religious beliefs. Hardison's claim of religious discrimination rested on 1967 EEOC guidelines requiring employers "to make reasonable accommodations to the religious needs of employees" whenever such accommodation would not work an "undue hardship," 29 CFR § 1605.1 (1968), and on similar language adopted by Congress in the 1972 amendments to Title VII, 42 U.S.C. § 2000e(j) (1970 ed., Supp. V).After a bench trial, the District Court ruled in favor of the defendants. Turning first to the claim against the union, the District Court ruled that, although the 1967 EEOC guidelines were applicable to unions, the union's duty to accommodate Hardison's belief did not require it to ignore its seniority system as Hardison appeared to claim. [Footnote 4] As for Hardison's Page 432 U. S. 70 claim against TWA, the District Court rejected at the outset TWA's contention that requiring it in any way to accommodate the religious needs of its employees would constitute an unconstitutional establishment of religion. As the District Court construed the Act, however, TWA had satisfied its "reasonable accommodations" obligation, and any further accommodation would have worked an undue hardship on the company.The Court of Appeals for the Eighth Circuit reversed the judgment for TWA. 527 F.2d 33 (1975). It agreed with the District Court's constitutional ruling, but held that TWA had not satisfied its duty to accommodate. Because it did not appear that Hardison had attacked directly the judgment in favor of the union, the Court of Appeals affirmed that judgment without ruling on its substantive merits.In separate petitions for certiorari TWA and IAM contended that adequate steps had been taken to accommodate Hardison's religious observances and that to construe the statute to require further efforts at accommodation would create an establishment of religion contrary to the First Amendment of the Constitution. TWA also contended that the Court of Appeals improperly ignored the District Court's findings of fact.We granted both petitions for certiorari. 429 U.S. 958 (1976). Because we agree with petitioners that their conduct was not a violation of Title VII, [Footnote 5] we need not reach the other questions presented. Page 432 U. S. 71IIThe Court of Appeals found that TWA had committed an unlawful employment practice under § 703(a)(1) of the Act, 42 U.S.C. § 2000e-2(a)(1), which provides:"(a) It shall be an unlawful employment practice for an employer -- ""(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."The emphasis of both the language and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin. [Footnote 6] This is true regardless of whether Page 432 U. S. 72 the discrimination is directed against majorities or minorities. McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 427 U. S. 280 (1976). See Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 431 (1971).The prohibition against religious discrimination soon raised the question of whether it was impermissible under § 703(a)(1) to discharge or refuse to hire a person who for religious reasons refused to work during the employer's normal workweek. In 1966, an EEOC guideline dealing with this problem declared that an employer had an obligation under the statute"to accommodate to the reasonable religious needs of employees . . . where such accommodation can be made without serious inconvenience to the conduct of the business."29 CFR § 1605.1 (1967).In 1967, the EEOC amended its guidelines to require employers"to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer's business."29 CFR § 1605.1 (1968). The EEOC did not suggest what sort of accommodations are "reasonable" or when hardship to an employer becomes "undue." [Footnote 7] Page 432 U. S. 73This question -- the extent of the required accommodation -- remained unsettled when this Court, in Dewey v. Reynolds Metals Co., 402 U. S. 689 (1971), affirmed by an equally divided Court the Sixth Circuit's decision in 429 F.2d 324 (1970). The discharge of an employee who, for religious reasons, had refused to work on Sundays was there held by the Court of Appeals not to be an unlawful employment practice because the manner in which the employer allocated Sunday work assignments was discriminatory in neither its purpose nor effect; and, consistent with the 1967 EEOC guidelines, the employer had made a reasonable accommodation of the employee's beliefs by giving him the opportunity to secure a replacement for his Sunday work. [Footnote 8]In part "to resolve by legislation" some of the issues raised in Dewey, 118 Cong.Rec. 706 (1972) (remarks of Sen. Randolph), Congress included the following definition of religion in its 1972 amendments to Title VII:"The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate Page 432 U. S. 74 to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."§ 701(j), 42 U.S.C. § 2000e(j) (1970 ed., Supp. V). The intent and effect of this definition was to make it an unlawful employment practice under § 703(a)(1) for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees. But like the EEOC guidelines, the statute provides no guidance for determining the degree of accommodation that is required of an employer. The brief legislative history of § 701(j) is likewise of little assistance in this regard. [Footnote 9] The proponent of the measure, Senator Jennings Page 432 U. S. 75 Randolph, expressed his general desire "to assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law," 118 Cong.Rec. 705 (1972), but he made no attempt to define the precise circumstances under which the "reasonable accommodation" requirement would be applied. [Footnote 10]In brief, the employer's statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines. With this in mind, we turn to a consideration of whether TWA has met its obligation Page 432 U. S. 76 under Title VII to accommodate the religious observances of its employees.IIIThe Court of Appeals held that TWA had not made reasonable efforts to accommodate Hardison's religious needs under the 1967 EEOC guidelines in effect at the time the relevant events occurred. [Footnote 11] In its view, TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship. First, within the framework of the seniority system, TWA could have permitted Hardison to work a four-day week, utilizing in his place a supervisor or another worker on duty elsewhere. That this would have caused other shop functions to suffer was insufficient to amount to undue hardship in the opinion of the Court of Appeals. Second -- according to the Court of Appeals, also within the bounds of the collective bargaining contract -- the company could have filled Hardison's Saturday shift from other available personnel competent to do the job, of which the court said there were at least 200. That this would have involved premium overtime pay was not deemed an undue hardship. Third, TWA could have arranged a "swap between Hardison and another employee either for another shift or for the Sabbath days." In response to the assertion that this would have involved a breach of the seniority Page 432 U. S. 77 provisions of the contract, the court noted that it had not been settled in the courts whether the required statutory accommodation to religious needs stopped short of transgressing seniority rules, but found it unnecessary to decide the issue because, as the Court of Appeals saw the record, TWA had not sought, and the union had therefore not declined to entertain, a possible variance from the seniority provisions of the collective bargaining agreement. The company had simply left the entire matter to the union steward, who, the Court of Appeals said, "likewise did nothing."We disagree with the Court of Appeals in all relevant respects. It is our view that TWA made reasonable efforts to accommodate, and that each of the Court of Appeals' suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines.AIt might be inferred from the Court of Appeals' opinion and from the brief of the EEOC in this Court that TWA's efforts to accommodate were no more than negligible. The findings of the District Court, supported by the record, are to the contrary. In summarizing its more detailed findings, the District Court observed:"TWA established as a matter of fact that it did take appropriate action to accommodate as required by Title VII. It held several meetings with plaintiff at which it attempted to find a solution to plaintiff's problems. It did accommodate plaintiff's observance of his special religious holidays. It authorized the union steward to search for someone who would swap shifts, which apparently was normal procedure."375 F. Supp. at 890-891. It is also true that TWA itself attempted without success to find Hardison another job. The District Court's view was that TWA had done all that could reasonably be expected within the bounds of the seniority system. Page 432 U. S. 78The Court of Appeals observed, however, that the possibility of a variance from the seniority system was never really posed to the union. This is contrary to the District Court's findings and to the record. The District Court found that, when TWA first learned of Hardison's religious observances in April, 1968, it agreed to permit the union's steward to seek a swap of shifts or days off, but that"the steward reported that he was unable to work out scheduling changes ,and that he understood that no one was willing to swap days with plaintiff."Id. at 888. Later, in March, 1969, at a meeting held just two days before Hardison first failed to report for his Saturday shift, TWA again"offered to accommodate plaintiff's religious observance by agreeing to any trade of shifts or change of sections that plaintiff and the union could work out. . . . Any shift or change was impossible within the seniority framework, and the union was not willing to violate the seniority provisions set out in the contract to make a shift or change."Id. at 889. As the record shows, Hardison himself testified that Kussman was willing, but the union was not, to work out a shift or job trade with another employee. App. 76-77.We shall say more about the seniority system, but, at this juncture, it appears to us that the system itself represented a significant accommodation to the needs, both religious and secular, of all of TWA's employees. As will become apparent, the seniority system represents a neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off. Additionally, recognizing that weekend work schedules are the least popular, the company made further accommodation by reducing its workforce to a bare minimum on those days.BWe are also convinced, contrary to the Court of Appeals, that TWA itself cannot be faulted for having failed to work Page 432 U. S. 79 out a shift or job swap for Hardison. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of men senior to Hardison; and for TWA to have arranged unilaterally for a swap would have amounted to a breach of the collective bargaining agreement.(1)Hardison and the EEOC insist that the statutory obligation to accommodate religious needs takes precedence over both the collective bargaining contract and the seniority rights of TWA's other employees. We agree that neither a collective bargaining contract nor a seniority system may be employed to violate the statute, [Footnote 12] but we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. Without a clear and express indication from Congress, we cannot agree with Hardison and the EEOC that an agreed-upon seniority system must give way when necessary to accommodate religious observances. The issue is important and warrants some discussion. Page 432 U. S. 80Any employer who, like TWA, conducts an around-the-clock operation is presented with the choice of allocating work schedules either in accordance with the preferences of its employees or by involuntary assignment. Insofar as the varying shift preferences of its employees complement each other, TWA could meet its manpower needs through voluntary work scheduling. In the present case, for example, Hardison's supervisor foresaw little difficulty in giving Hardison his religious holidays off, since they fell on days that most other employees preferred to work, while Hardison was willing to work on the traditional holidays that most other employees preferred to have off.Whenever there are not enough employees who choose to work a particular shift, however, some employees must be assigned to that shift even though it is not their first choice. Such was evidently the case with regard to Saturday work; even though TWA cut back its weekend workforce to a skeleton crew, not enough employees chose those days off to staff the Stores Department through voluntary scheduling. In these circumstances, TWA and IAM agreed to give first preference to employees who had worked in a particular department the longest.Had TWA nevertheless circumvented the seniority system by relieving Hardison of Saturday work and ordering a senior employee to replace him, it would have denied the latter his shift preference so that Hardison could be given his. The senior employee would also have been deprived of his contractual rights under the collective bargaining agreement.It was essential to TWA's business to require Saturday and Sunday work from at least a few employees even though most employees preferred those days off. Allocating the burdens of weekend work was a matter for collective bargaining. In considering criteria to govern this allocation, TWA and the union had two alternatives: adopt a neutral system, such as seniority, a lottery, or rotating shifts; or allocate days off in Page 432 U. S. 81 accordance with the religious needs of its employees. TWA would have had to adopt the latter in order to assure Hardison and others like him of getting the days off necessary for strict observance of their religion, but it could have done so only at the expense of others who had strong, but perhaps nonreligious, reasons for not working on weekends. There were no volunteers to relieve Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath.Title VII does not contemplate such unequal treatment. The repeated, unequivocal emphasis of both the language and the legislative history of Title VII is on eliminating discrimination in employment, and such discrimination is proscribed when it is directed against majorities, as well as minorities. See supra at 432 U. S. 71-72. Indeed, the foundation of Hardison's claim is that TWA and IAM engaged in religious discrimination in violation of 703(a)(1) when they failed to arrange for him to have Saturdays off. It would be anomalous to conclude that, by "reasonable accommodation," Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far.(2)Our conclusion is supported by the fact that seniority systems are afforded special treatment under Title VII itself. Section 703(h) provides in pertinent part:"Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment Page 432 U. S. 82 pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin. . . ."42 U.S.C. § 2000e-2(h)."[T]he unmistakable purpose of § 703(h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII."Teamsters v. United States, 431 U. S. 324, 431 U. S. 352 (1977). See also United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977). Section 703(h) is"a definitional provision; as with the other provisions of § 703, subsection (h) delineates which employment practices are illegal, and thereby prohibited, and which are not."Franks v. Bowman Transportation Co., 424 U. S. 747, 424 U. S. 758 (1976). Thus, absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.There has been no suggestion of discriminatory intent in this case."The seniority system was not designed with the intention to discriminate against religion, nor did it act to lock members of any religion into a pattern wherein their freedom to exercise their religion was limited. It was coincidental that, in plaintiff's case, the seniority system acted to compound his problems in exercising his religion."375 F. Supp. at 883. The Court of Appeals' conclusion that TWA was not limited by the terms of its seniority system was, in substance, nothing more than a ruling that operation of the seniority system was itself an unlawful employment practice even though no discriminatory purpose had been shown. That ruling is plainly inconsistent with the dictates of § 703(h), both on its face and as interpreted in the recent decisions of this Court. [Footnote 13] Page 432 U. S. 83As we have said, TWA was not required by Title VII to carve out a special exception to its seniority system in order to help Hardison to meet his religious obligations. [Footnote 14] Page 432 U. S. 84CThe Court of Appeals also suggested that TWA could have permitted Hardison to work a four-day week if necessary in order to avoid working on his Sabbath. Recognizing that this might have left TWA short-handed on the one shift each week that Hardison did not work, the court still concluded that TWA would suffer no undue hardship if it were required to replace Hardison either with supervisory personnel or with qualified personnel from other departments. Alternatively, the Court of Appeals suggested that TWA could have replaced Hardison on his Saturday shift with other available employees through the payment of premium wages. Both of these alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs or higher wages.To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship. [Footnote 15] Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. By suggesting that TWA should incur certain costs in order to give Hardison Saturdays off, the Court of Appeals would, in effect, require TWA to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to secure a replacement for Hardison might remove the necessity of compelling another employee to work involuntarily Page 432 U. S. 85 in Hardison's place, it would not change the fact that the privilege of having Saturdays off would be allocated according to religious beliefs.As we have seen, the paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment. In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.Reversed

U.S. Supreme CourtTrans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977)Trans World Airlines, Inc. v. HardisonNo. 75-1126Argued March 30, 1977Decided June 16, 1977*432 U.S. 63SyllabusRespondent Hardison (hereafter respondent) was employed by Trans World Airlines (TWA), petitioner in No. 75-1126, in a department that operated 24 hours a day throughout the year in connection with an airplane maintenance and overhaul base. Respondent was subject to a seniority system in a collective bargaining agreement between TWA and the International Association of Machinists & Aerospace Workers (union), petitioner in No. 75-1385, whereby the most senior employees have first choice for job and shift assignments as they become available, and the most junior employees are required to work when enough employees to work at a particular time or in a particular job to fill TWA's needs cannot be found. Because respondent's religious beliefs prohibit him from working on Saturdays, attempts were made to accommodate him, and these were temporarily successful mainly because, on his job at the time, he had sufficient seniority regularly to observe Saturday as his Sabbath. But when he sought, and was transferred to, another job where he was asked to work Saturdays and where he had low seniority, problems began to arise. TWA agreed to permit the union to seek a change of work assignments, but the union was not willing to violate the seniority system, and respondent had insufficient seniority to bid for a shift having Saturdays off. After TWA rejected a proposal that respondent work only four days a week on the ground that this would impair critical function in the airline operations, no accommodation could be reached, and respondent was discharged for refusing to work on Saturdays. Then, having first invoked the administrative remedy provided by Title VII of the Civil Rights Act of 1964, respondent brought an action for injunctive relief against TWA and the union, claiming that his discharge constituted religious discrimination in violation of § 703(a)(1) of the Act, which makes it an unlawful employment practice for an employer to discriminate against an employee on the basis of his religion. He also made certain other charges against the union. His claim of religious discrimination was based on Page 432 U. S. 64 the 1967 Equal Employment Opportunity Commission (EEOC) guidelines in effect at the time requiring an employer, short of "undue hardship," to make "reasonable accommodations" to the religious needs of its employees, and on similar language in the 1972 amendments to Title VII. The District Court ruled in favor of both TWA and the union, holding that the union's duty to accommodate respondent's religious beliefs did not require it to ignore the seniority system, and that TWA had satisfied its "reasonable accommodations" obligation. The Court of Appeals affirmed the judgment for the union but reversed the judgment for TWA, holding that TWA had not satisfied its duty to accommodate respondent's religious needs under the EEOC guidelines. The court took the view that TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship: (1) within the framework of the seniority system, TWA could have permitted respondent to work a four-day week, utilizing a supervisor or another worker on duty elsewhere, even though this would have caused other shop functions to suffer; (2) TWA could have filled respondent's Saturday shift from other available personnel, even though this would have involved premium overtime pay; and (3) TWA could have arranged a "swap" between respondent and another employee either for another shift or for the Sabbath days, even though this would have involved a breach of the seniority system.Held: TWA, which made reasonable efforts to accommodate respondent's religious needs, did not violate Title VII, and each of the Court of Appeals' suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines. Pp. 432 U. S. 76-85.(a) The seniority system itself represented a significant accommodation to the needs, both religious and secular, of all of TWA's employees. Pp. 432 U. S. 77-78.(b) TWA itself cannot be faulted for having failed to work out a shift or job swap for respondent. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of employees senior to respondent; and for TWA to have arranged unilaterally for a swap would have breached the collective bargaining agreement. An agreed-upon seniority system is not required to give way to accommodate religious observances, and it would be anomalous to conclude that, by "reasonable accommodations," Congress meant that an employer must deny the shift and job preferences of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others. Title VII does not require an employer to go that far. Pp. 432 U. S. 79-81. Page 432 U. S. 65(c) Under § 703(h) of Title VII, absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system is discriminatory in its effect. Pp. 432 U. S. 81-82.(d) To require TWA to bear more than a de minimis cost in order to give respondent Saturdays off would be an undue hardship, for, like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. Absent clear statutory language or legislative history to the contrary, the statute, the paramount concern of which is to eliminate discrimination in employment, cannot be construed to require an employer to discriminate against some employees in order to enable others to observe their Sabbath. Pp. 432 U. S. 84-85.527 F.2d 33, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 432 U. S. 85. Page 432 U. S. 66

1963_273

MR. JUSTICE CLARK delivered the opinion of the Court.The issue in this case is whether the Federal Power Commission, when granting an application for a temporary certificate authorizing the sale of natural gas in interstate commerce, can impose a condition that the applicant shall not increase its certificated price pending a hearing on the applicant's petition for permanent authority. Each of the seven applications involved here requested temporary operating authority to sell natural gas in interstate commerce on emergency grounds, as provided by § 7(c) and (e) of the Natural Page 376 U. S. 516 Gas Act. [Footnote 1] In each case, the Federal Power Commission conditioned the temporary grant of authority upon, inter alia, the producer's maintaining the initial price, without Page 376 U. S. 517 increase, during the period of the temporary authorization. On appeal, the Court of Appeals set aside this condition, holding that it was beyond the power of the Commission and conflicted with the right of a producer to initiate a higher contract rate under § 4 of the Act. 306 F.2d 334. We granted certiorari because of the importance of the question to the enforcement of the Natural Gas Act. 375 U.S. 810. We conclude that the Commission can impose such a condition in granting temporary authorizations under § 7, and therefore reverse the judgments.IWhile this case involves applications for seven different temporary authorizations, the essential facts as to each, save the dates and gas fields, are the same. Since the parties and the Court of Appeals have treated the sale by the Hassie Hunt Trust as typical, we shall do likewise.The Hunts are producers of natural gas in the Alta Loma area in Galveston County in Texas Railroad District No. 3. In July, 1960, the Commission issued a permanent certificate authorizing sales of natural gas from the Alta Loma and other areas to the Peoples Gulf Coast Natural Gas Pipeline Co., 24 F.P.C. 1. The authorization was conditioned upon the producer's filing Page 376 U. S. 518 an amended contract providing for an initial price of 20� per Mcf., with an escalation of 3� after 10 years. The original contract had allowed four 2� escalations at four-year intervals. The order was found defective, however, because the Public Service Commission of New York, which sought a lower initial price, had been refused intervention before the Commission. See Public Service Comm'n v. Federal Power Comm'n, 111 U.S.App.D.C. 153, 295 F.2d 140, cert. denied, sub. nom. Shell Oil Co. v. Public Service Comm'n, 368 U.S. 948. Thereafter, the Commission vacated its issuance of the certificate and ordered a new hearing on the question of initial price. 26 F.P.C. 689.In the meantime, after the issuance, but prior to the vacating, of the July, 1960, certificate, the Commission issued General Policy No. 61-1, 18 CFR § 2.56, 24 F.P.C. 818, which fixed the guideline for initial prices for Texas Railroad District No. 3 at 18� per Mcf., 2� below the initial price allowed in the July, 1960, certificate.Thereafter, on February 27, 1961, the Hassie Hunt Trust applied for a permanent certificate of public convenience and necessity allowing sales from a new well in this same area to Natural Gas Pipeline Company of America, the successor to Peoples Gulf Coast. It also applied for temporary authorization to begin service immediately under the emergency provisions of the Commission's Regulations issued under § 7(c) of the Act. 18 CFR § 157.28. The emergency was alleged to result from the "necessity of paying shut-in royalties and the incurrence of drainage through sales by others to pipeline companies other than Natural." The new sale was covered by a 20-year contract, dated December 15, 1960, with provisions identical to those of the earlier contract, i.e., an initial price of 20� per Mcf. with 2� escalations at four-year intervals. The Commission, on April 7, 1961, granted the temporary authorization subject to Page 376 U. S. 519 three conditions: (1) that the total initial price not exceed 18� per Mcf., and thus be in keeping with the guideline rate set for Texas Railroad District No. 3, (2) that within 20 days supplements to the contracts be filed consistent with this price, and (3) that the temporary authorization be accepted in writing within 20 days. Deliveries were commenced by the producer on April 19 before these conditions were met. On May 5, a conditional acceptance was filed reserving the right to seek removal of the conditions imposed and tendering an amended contract providing for an 18� initial price for 30 days with 20� per Mcf. thereafter. The Commission rejected this conditional acceptance and subsequently, in order to make clear its position, specifically provided that the initial rate was to be 18� and that there was to be no change therein pending the hearing on permanent authorization. The proposed 20� rate was rejected, and thereafter this review followed.The Court of Appeals sustained the 18� initial price, but held that the Commission had no power to condition temporary authorizations so as to preclude the filing and collection of increased rates pursuant to § 4 of the Act.IIOnce again we are confronted with a question solely of the proper interpretation of the Natural Gas Act. This time we must determine the interplay of §§ 4 and 7. These sections are the avenues through which the natural gas producer may, by contract or otherwise, initially propose the dedication of his natural gas supply to interstate movement (§ 7) and, once so dedicated by order of the Federal Power Commission, thereafter initiate changes in existing rates (§ 4). We will proceed with separate analyses of these two sections.Section 7(c) came into the Natural Gas Act in 1942, and provides the method by which gas may be dedicated Page 376 U. S. 520 and certificated into interstate commerce. It prohibits a natural gas producer from engaging in the transportation or sale of natural gas"unless there is in force with respect to such natural gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations."In order to secure such certificates, applications are filed with the Commission, and, in due course, the applicants are afforded a hearing. Sections 7(c) and (e) of the Act command that a certificate shall be issued if the Commission finds it "required by the present or future public convenience and necessity" and if the applicant meets certain tests of reliability, such as ability and willingness to perform. In issuing such certificates, the Commission has"the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require."§ 7(e).Hearings under § 7(e) for permanent certification are time-consuming. The Congress, realizing this, provided in § 7(c) that"the Commission may issue a temporary certificate in cases of emergency, to assure maintenance of adequate service or to serve particular customers, without notice or hearing, pending the determination of an application for a certificate, and may by regulation exempt from the requirements of this section temporary acts or operations for which the issuance of a certificate will not be required in the public interest."Pursuant to this authorization, the Commission adopted a regulation which sets out standards for emergency authorizations and requires the applicant to file "a statement of intention to invoke this section." 18 CFR § 157.28(c). The Commission grants the temporary certificate, where it deems necessary, without notice or hearing. Under the terms of the regulation, this authorization continues until final Commission action under §§ 4 and 7, "without prejudice Page 376 U. S. 521 to such rate or other condition as may be attached to the issuance of the certificate." 18 CFR § 157.28.It must be noted, however, that § 7 does not stipulate that the Commission must find the initial rate to be just and reasonable, but simply that the service proposed is required by the present and future public convenience and necessity. Nor does § 7 grant the Commission power to suspend the rate authorized in permanent or temporary certificates issued under that section. Once a permanent certificate is granted, the Commission can correct an improper rate only under § 5 of the Act, 52 Stat. 823, 15 U.S.C. § 717d, which likewise has no suspension provision. In the light of this inability to suspend the initial rate granted under a § 7 certificate, the Commission attaches conditions to the certificate of authority which it deems necessary to afford consumers the "complete, permanent and effective bond of protection from excessive rates and charges" for which we found the Act was framed in Atlantic Refining Co. v. Public Service Comm'n, 360 U. S. 378, 360 U. S. 388 (1959). "The heart of the Act," we said there, was in those provisions of § 7(e)"requiring initially that any 'proposed service, sale, operation, construction, extension, or acquisition . . . will be required by the present or future public convenience and necessity,' . . . and that all rates and charges 'made, demanded, or received' shall be 'just and reasonable,' § 4, 15 U.S.C. § 717c."In this case, the Commission concluded that, when granting temporary certificates, it must look even more carefully to the present and future public convenience and necessity and interpose such conditions precedent as would, in its view, fully protect consumers from excessive rates and charges.Section 4 was included in the original Act of 1938. 52 Stat. 822, 15 U.S.C. § 717c. It provides in part that"no change shall be made by any natural gas company in Page 376 U. S. 522 any . . . rate . . . except after thirty days' notice to the Commission and to the public."§ 4(d). Whenever such new rate is filed, the Commission may, after notice, hold hearings to determine whether the rate is lawful, and may suspend its operation, but only for a period of five months. § 4(e). If the proceeding is not concluded within those five months, the proposed rate becomes effective and collectible, subject to subsequent refund by the natural gas company to the extent the rate is not just and reasonable. As we said in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, 350 U. S. 341 (1956), the power granted to the Commission"is simply the power to review rates and contracts made in the first instance by natural gas companies and, if they are determined to be unlawful, to remedy them."And we specifically pointed out that all § 4(e) does"is to add to this basic power, in the case of a newly changed rate . . . the further powers (1) to preserve the status quo pending review of the new rate by suspending its operation for a limited period, and (2) thereafter to make its order retroactive, by means of the refund procedure, to the date the change became effective."Ibid. The power granted to the Commission in § 4 does not come into play until after the initial certification of the natural gas into interstate commerce has been granted under § 7.In the instant case no permanent certificates authorizing sales in interstate commerce have yet been issued. Temporary certificates have been allowed, and each is conditioned upon the maintenance of the initial price. Thus, if respondents' position is correct, then the conditions precedent to the issuance of the temporary certificates required by the Commission can be nullified by subsequent independent action of the respondents in filing a new contract under § 4. We do not believe that the Congress intended any such incongruous result. Page 376 U. S. 523IIIWe find no conflict in the directives of the two sections. Indeed, they supplement one another, and thereby work together in efficient conjunction to carry out the purposes of the Act. When the independent producer knocks on the door of the Commission for permission to enter his gas in interstate commerce, he must submit to the requirements of § 7. His natural gas must be certificated before it can move into interstate commerce. If he wishes to avoid the delay incident to a hearing for a permanent certificate, he may apply for temporary authorization, which may be granted upon ex parte application. In view of this, the Commission must have the authority to condition a temporary certificate so as to avoid irreparable injury to affected parties. This condition, once imposed, continues only during the pendency of the producer's application for a permanent certificate. In view of the ex parte nature of the proceeding, it appears only fair to all concerned that the condition upon which the rate was temporarily certified be continued unchanged until the permanent certificate is issued.Under the procedures of the Act, it is at the point of permanent or unconditional temporary certification that the provisions of § 4 become applicable. The gas has been permanently certificated into interstate commerce, and the independent producer is then free to pursue the rate-filing procedure of that section.This Court previously discussed the use of the temporary certificate procedure in Atlantic Refining Co. v. Public Service Comm'n, supra. There, we indicated that the Commission might avail itself of its power to condition the initial certification of natural gas into interstate commerce in order to prevent a triggering of general price rises. The language is unmistakably clear as to the Page 376 U. S. 524 claim made here that the vitality of § 4 of the Act is being impaired, and we therefore repeat and reaffirm it:"This is not an encroachment upon the initial rate-making privileges allowed natural gas companies under the Act, United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, but merely the exercise of that duty imposed on the Commission to protect the public interest in determining whether the issuance of the certificate is required by the public convenience and necessity, which is the Act's standard in § 7 applications. In granting such conditional certificates, the Commission does not determine initial prices, nor does it overturn those agreed upon by the parties. Rather, it so conditions the certificate that the consuming public may be protected while the justness and reasonableness of the price fixed by the parties is being determined under other sections of the Act. Section 7 procedures in such situations thus act to hold the line awaiting adjudication of a just and reasonable rate."360 U.S. at 391- 360 U. S. 392.Nor is it any answer to say that the suspension power under § 4(e) will afford protection to the public. The experience since our opinion in Atlantic Refining Co., supra, indicates that a triggering of price rises often results from the out-of-line initial pricing of certificated gas. These effects become irreversible and splash over into intrastate sales, thus generating reciprocal pressures that directly affect jurisdictional rates. As we said in Federal Power Comm'n v. Tennessee Gas Transmission Co., 371 U. S. 145, 371 U. S. 154-155 (1962), the possibility of refund does not afford sufficient protection:"True, the exaction would have been subject to refund, but experience has shown this to be somewhat illusory. . . . It is, therefore, the duty of the Commission to look at 'the backdrop of the practical Page 376 U. S. 525 consequences [resulting] . . . , and the purposes of the Act,' Sunray Mid-Continent Oil Co. v. Federal Power Comm., 364 U. S. 137, 364 U. S. 147 (1960), in exercising its discretion under § 16 to issue interim orders. . . ."IVOur interpretation of the power of the Commission under §§ 7(c) and (e) is buttressed by the legislative history. They were added to the Act in 1942, four years after its original passage. Prior to their adoption, the only ratemaking regulatory tools the Commission possessed were §§ 4 and 5, and they came into operation only after the natural gas was already moving in interstate commerce. Sections 7(c) and (e) were designed to control the certification of gas destined for interstate movement. [Footnote 2] The purpose of the amendments was to give"the Commission an opportunity to scrutinize the financial set-up, the adequacy of the gas reserves, the feasibility and adequacy of the proposed services, and the characteristics of the rate structure . . . at a time when such vital matters can readily be modified as the public interest may demand. . . ."House Committee on Interstate and Foreign Commerce, H.R.Rep.No.1290, 77th Cong., 1st Sess., 2-3. Its counterpart in the Senate likewise reported:"Provisions of the Natural Gas Act empower the Commission to prevent uneconomic extensions and waste, but it can so regulate such powers only when the extension is to 'a market in which natural gas is already being served by another natural gas company.' Thus, the possibilities of waste, uneconomic and uncontrolled extensions are multiple and tremendous. Page 376 U. S. 526 The present bill would correct this glaring inadequacy of the act. It would also authorize the Commission to examine costs, finances, necessity, feasibility, and adequacy of proposed services. The characteristics of their rate structure could be studied."Senate Committee on Interstate Commerce, S.Rep. No. 948, 77th Cong., 2d Sess., 1-2.Clearly, the Commission was given the power to lay down conditions precedent to the entry of the natural gas into interstate commerce. Moreover, the Commission has long recognized this obligation, and has required modification of many tariff and contract provisions as a condition to the granting of a certificate. [Footnote 3]The existence of broad discretionary power in the Commission to condition temporary certificates appears to us to be vital to its ability to hold the line in pricing. The extent of that power in permanent certification is not before us now, since each of these applications is for temporary certification. It is said that the condition of the Commission's docket transposes, for all practical matters, Page 376 U. S. 527 temporary certificates into permanent ones. This claim arises due to the delays incident to the issuance of a permanent certificate. We spoke of the "nigh interminable" delay in § 5 proceedings in Atlantic Refining Co. v. Public Service Comm'n, supra, at 360 U. S. 389. There, delay operated against the consumer. Here, it operates against the producer. The Commission has been making efforts in this regard, through the establishment of guidelines for determining initial prices and other administrative devices. 43 F.P.C.Ann.Rep. 13, 119-120 (1963). However, we again call to its attention the dangers inherent in the accumulation of a large backlog of cases, with its accompanying irreparable injury to the parties. Moreover, consumers may become directly affected thereby through the reluctance of producers to enter interstate markets because of the long delay incident to permanent certification. Procedures must be worked out not only to clear up this docket congestion, but also to maintain a reasonably clear current docket so that hearings may be had without inordinate delay. In this connection the techniques of the National Labor Relations Board might be studied with a view to determining whether its exemption practices, see Guss v. Utah Labor Relations Board, 353 U. S. 1, 353 U. S. 3-4 (1957), might be helpful in the solution of the Commission's problems.Reversed

U.S. Supreme CourtFPC v. Hunt, 376 U.S. 515 (1964)Federal Power Commission v. HuntNo. 273Argued March 2, 1964Decided March 30, 1964376 U.S. 515Syllabus1. The issuance by the Federal Power Commission (FPC) of a temporary certificate of public convenience and necessity under § 7(c) of the Natural Gas Act, authorizing the sale of natural gas in interstate movement pending determination of an application for permanent certification, may be conditioned in the FPC's discretion upon the maintenance of a prescribed price during the period of the temporary authorization. Pp. 376 U. S. 515-521.2. The procedure of § 4 of the Act for the filing of proposed changes in rates is available to the producer only after the issuance of a permanent or an unconditional temporary certificate. Pp. 376 U. S. 523-527.306 F.2d 334, reversed.

1996_95-1181

Commission) to regulate "off-exchange" trading in options to buy or sell foreign currency.IThe CFTC brought this action in 1994, alleging that, beginning in 1992, petitioners solicited investments in and operated a fraudulent scheme in violation of the Commodity Exchange Act (CEA), 7 U. S. C. § 1 et seq., and CFTC regulations.1 App. 10. See 7 U. S. C. § 6c(b); 17 CFR § 32.9 (1996).2 The CFTC's complaint, affidavits, and declarations submitted to the District Court indicate that customers were told their funds would be invested using complex strategies involving options to purchase or sell various foreign currencies. App. 8. Petitioners apparently did in fact engage in many such transactions. Ibid.; 58 F.3d 50, 51 (CA2 1995). To do so, they contracted directly with international banks and others without making use of any regulated exchange or board of trade. In the parlance of the business, petitioners traded in the "off-exchange" or "over-1 The complaint names as defendants William C. Dunn, Delta Consultants, Inc., Delta Options, Ltd., and Nopkine Co., Ltd. App. 6-7. Only Dunn and Delta Consultants are petitioners here.2The statute provides: "No person shall offer to enter into, enter into or confirm the execution of, any transaction involving any commodity regulated under this chapter which is of the character of, or is commonly known to the trade as, an 'option' ... contrary to any rule, regulation, or order of the Commission prohibiting any such transaction or allowing any such transaction under such terms and conditions as the Commission shall prescribe." 7 U. S. C. § 6c(b). The regulations at issue here further make it unlawful "for any person directly or indirectly ... [t]o cheat or defraud or attempt to cheat or defraud any other person; ... [t]o make or cause to be made to any other person any false report or statement thereof or cause to be entered for any person any false record thereof; ... [or] [t]o deceive or attempt to deceive any other person by any means whatsoever ... in or in connection with an offer to enter into, the entry into, or the confirmation of the execution of, any commodity option transaction." 17 CFR § 32.9 (1996).468the-counter" (OTC) market.3 Ibid. No options were ever sold directly to petitioners' customers. However, their positions were tracked through internal accounts, and investors were provided weekly reports showing the putative status of their holdings. Petitioners and their customers suffered heavy losses. Id., at 51-52. Subsequently, the CFTC commenced these proceedings.Rejecting petitioners' defense that off-exchange transactions in foreign currency options are exempt from the CEA, the District Court appointed a temporary receiver to take control of their property for the benefit of their customers. App. to Pet. for Cert. 5b-6b. Relying on Circuit precedent,4 and acknowledging a conflict with another Circuit,5 the Court of Appeals affirmed. 58 F. 3d, at 54. We granted certiorari to resolve the conflict. 517 U. S. 1219 (1996). For the reasons that follow, we reverse and remand for further proceedings.IIThe outcome of this case is dictated by the so-called "Treasury Amendment" to the CEA. 88 Stat. 1395, 7 U. S. C. § 2(ii). We have previously reviewed the history of the CEA and generally described how it authorizes the CFTC to regulate the "volatile and esoteric" market in3We are informed by amici that participants in the "highly evolved, sophisticated" OTC foreign currency markets include "commercial and investment banks, ... foreign exchange dealers and brokerage companies, corporations, money managers (including pension, mutual fund and commodity pool managers), commodity trading advisors, insurance companies, governments and central banks." Brieffor Foreign Exchange Committee et al. as Amici Curiae 8. These markets serve a variety of functions, including providing ready access to foreign currency for international transactions, and allowing businesses to hedge against the risk of exchange rate movements. Id., at 8-9.458 F.3d 50, 53 (CA2 1995) (citing Commodity Futures Trading Comm'n v. American Ed. of Trade, 803 F.2d 1242 (CA2 1986)).558 F. 3d, at 54 (citing Salomon Forex, Inc. v. Tauber, 8 F.3d 966 (CA4 1993), cert. denied, 511 U. S. 1031 (1994)).469futures contracts in fungible commodities. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353,356,357-367 (1982). As a part of the 1974 amendments that created the CFTC and dramatically expanded the coverage of the statute to include nonagricultural commodities "in which contracts for future delivery are presently or in the future dealt in," see 88 Stat. 1395, 7 U. S. C. § 2 (1970 ed., Supp. IV), Congress enacted the following exemption, which has come to be known as the "Treasury Amendment":"Nothing in this chapter shall be deemed to govern or in any way be applicable to transactions in foreign currency, security warrants, security rights, resales of installment loan contracts, repurchase options, government securities, or mortgages and mortgage purchase commitments, unless such transactions involve the sale thereof for future delivery conducted on a board of trade." 7 U. S. C. § 2(ii) (emphasis added).The narrow issue that we must decide is whether the italicized phrase ("transactions in foreign currency") includes transactions in options to buy or sell foreign currency. An option, as the term is understood in the trade, is a transaction in which the buyer purchases from the seller for consideration the right, but not the obligation, to buy or sell an agreed amount of a commodity at a set rate at any time prior to the option's expiration.6 We think it plain that foreign currency options are "transactions in foreign currency" within the meaning of the statute. We are not persuaded6 See G. Munn & F. Garcia, Encyclopedia of Banking and Finance 736 (8th ed. 1983) (hereinafter Munn & Garcia); C. Luca, Trading in the Global Currency Markets 243 (1995) (hereinafter Luca). Participants in these markets refer to an option that provides the right to sell currency as a "put," and one that provides the right to buy as a "call." Munn & Garcia 737; Luca 270, 272. Options can themselves be traded, at values that vary depending upon the exchange rate of the underlying currencies prior to the option's expiration. Brief for Foreign Exchange Committee et al. as Amici Curiae 5, n. 5.470by any of the arguments advanced by the CFTC in support of a narrower reading that would exempt futures contracts (agreements to buy or sell a specified quantity of a commodity at a particular price for delivery at a set future date)7 without exempting options.III"[A]bsent any 'indication that doing so would frustrate Congress's clear intention or yield patent absurdity, our obligation is to apply the statute as Congress wrote it.' " Hubbard v. United States, 514 U. S. 695, 703 (1995) (quoting BFP v. Resolution Trust Corporation, 511 U. S. 531, 570 (1994) (SOUTER, J., dissenting)). The CFTC argues, and the Court of Appeals held, that an option is not itself a transaction "in" foreign currency, but rather is just a contract right to engage in such a transaction at a future date. Brief for CFTC 30-31; 58 F. 3d, at 53. Hence, the Commission submits that the term "transactions in foreign currency" includes only the "actual exercise of an option (i. e., the actual purchase or sale of foreign currency)" but not the purchase or sale of an option itself. Brief for CFTC 31. That reading of the text seems quite unnatural to us, and we decline to adopt it.The more normal reading of the key phrase encompasses all transactions in which foreign currency is the fungible good whose fluctuating market price provides the motive for trading. The CFTC's interpretation violates the ordinary meaning of the key word "in," which is usually thought to be "synonymous with [the] expressions 'in regard to,' 'respecting,' [and] 'with respect to.'" Black's Law Dictionary 758 (6th ed. 1990); see Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 697-698 (1995). There can be no question that the purchase or sale of a foreign7See Munn & Garcia 414; City of New York Bar Association Committee on Futures Regulation, The Evolving Regulatory Framework for Foreign Currency Trading 9 (1986).471currency option is a transaction "respecting" foreign currency. We think it equally plain as a matter of ordinary meaning that such an option is a transaction "in" foreign currency for purposes of the Treasury Amendment.Indeed, adopting the Commission's reading would deprive the exemption of the principal effect Congress intended. The CFTC acknowledges that futures contracts fall squarely within the Treasury Amendment's exemption, Brief for CFTC 30, and there is no question that the exemption of off-exchange foreign currency futures from CFTC regulation was one of Congress' primary goals.8 Yet on the CFTC's reasoning the exemption's application to futures contracts could not be sustained.A futures contract is no more a transaction "in" foreign currency as the Commission understands the term than an option. The Commission argues that because a futures contract creates a legal obligation to purchase or sell currency on a particular date, it is somehow more clearly a transaction "in" the underlying currencies than an option, which generates only the right to engage in a transaction. Id., at 3032. This reasoning is wholly unpersuasive. No currency changes hands at the time a futures contract is made. And,8 The amendment was enacted on the suggestion of the Treasury Department at the time of a dramatic expansion in the scope of federal commodities regulation. The Department expressed concerns in a letter to the relevant congressional committee that this development might lead, inter alia, to the unintended regulation of the off-exchange market in foreign currency futures. See S. Rep. No. 93-1131, pp. 49-50 (1974) ("The Department feels strongly that foreign currency futures trading, other than on organized exchanges, should not be regulated by the new agency") (letter of Donald Ritger, Acting General Counsel). The Treasury Amendment, which tracks almost verbatim the language proposed by the Department, cf. id., at 51, was included in the legislation to respond to these concerns. Id., at 23. The CFTC is therefore plainly correct to reject the suggestion of its amici that the Treasury Amendment's exemption be construed not to include futures contracts within its coverage. See Brief for Chicago Mercantile Exchange as Amicus Curiae 17-18; Brieffor Board of Trade of City of Chicago as Amicus Curiae 10.472the existence of a futures contract does not guarantee that currency will actually be exchanged. Indeed, the Commission concedes that, in most cases, futures contracts are "extinguished before delivery by entry into an offsetting futures contract." Id., at 30 (citing 1 T. Snider, Regulation of the Commodities Futures and Options Markets § 2.05 (2d ed. 1995) (hereinafter Snider)); see also Munn & Garcia 414. Adopting the CFTC's reading would therefore place both futures and options outside the exemption, in clear contravention of Congress' intent.Furthermore, this interpretation would leave the Treasury Amendment's exemption for "transactions in foreign currency" without any significant effect at all, because it would limit the scope of the exemption to "forward contracts" (agreements that anticipate the actual delivery of a commodity on a specified future date) and "spot transactions" (agreements for purchase and sale of commodities that anticipate near-term delivery).9 Both are transactions "in" a commodity as the CFTC would have us understand the term. But neither type of transaction for any commodity was subject to intensive regulation under the CEA at the time of the Treasury Amendment's passage. See 7 U. S. C. § 2 (1970 ed., Supp. IV) ("term 'future delivery,' as used in this chapter, shall not include any sale of any cash commodity for deferred shipment or delivery"); Snider § 9.01; J. Markham, The History of Commodity Futures Trading and Its Regulation 201203 (1987). Our reading of the exemption is therefore also consonant with the doctrine that legislative enactments should not be construed to render their provisions mere surplusage. See Babbitt, 515 U. S., at 698 (noting "reluctance to treat statutory terms as surplusage"); Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U. S. 237, 249 (1985).9 See Snider § 9.01 (defining "spot transactions" and "forward contracts").473Finally, including options in the exemption is consistent with Congress' purpose in enacting the Treasury Amendment. Although at the time the Treasury Amendment was drafted a thriving off-exchange market in foreign currency futures was in place, the closely related options market at issue here had not yet developed. See City of New York Bar Association Committee on Futures Regulation, The Evolving Regulatory Framework for Foreign Currency Trading 18, 23 (1986). The CFTC therefore suggests that Congress could not have intended to exempt foreign currency options from the CEA's coverage. Brief for CFTC 4142. The legislative history strongly suggests to the contrary that Congress' broad purpose in enacting the Treasury Amendment was to provide a general exemption from CFTC regulation for sophisticated off-exchange foreign currency trading, which had previously developed entirely free from supervision under the commodities laws.In explaining the Treasury Amendment, the Senate Committee Report notes in broad terms that the amendment "provides that inter-bank trading of foreign currencies and specified financial instruments is not subject to Commission regulation." S. Rep. No. 93-1131, p. 6 (1974).10 Elsewhere, the Report again explains in general terms-without making reference to any distinction between options and futuresthat the legislation"included an amendment to clarify that the provisions of the bill are not applicable to trading in foreign currencies and certain enumerated financial instruments unless such trading is conducted on a formally organized futures exchange. A great deal of the trading in foreign currency in the United States is carried out through an informal network of banks and tellers. The Committee10 Similarly, the Conference Committee Report points out that the Treasury Amendment "provides that interbank trading of foreign currencies and specified financial instruments is not subject to Commission regulation." H. R. Conf. Rep. No. 93-1383, p. 35 (1974).474believes that this market is more properly supervised by the bank regulatory agencies and that, therefore, regulation under this legislation is unnecessary." Id., at 23.Similarly, the Treasury Department submitted to the Chairman of the relevant Senate Committee a letter that was the original source of the Treasury Amendment. While focusing on the need to exempt the foreign currency futures market from CFTC regulation, the letter points out that the "participants in this market are sophisticated and informed institutions," and "the [CFTC] would clearly not have the expertise to regulate a complex banking function and would confuse an already highly regulated business sector." Id., at 50 (letter of Donald Ritger, Acting General Counsel). The Department further explained that "new regulatory limitations and restrictions could have an adverse impact on the usefulness and efficiency of foreign exchange markets for traders and investors." Ibid.Although the OTC market for foreign currency options had not yet developed in 1974, the reasons underlying the Treasury Department's express desire at that time to exempt offexchange commodity futures trading from CFTC regulation apply with equal force to options today. Foreign currency options and futures are now traded in the same off-exchange markets, by the same entities, for quite similar purposes. See Brief for Foreign Exchange Committee et al. as Amici Curiae 19. Contrary to the Commission's suggestion, we therefore think the purposes underlying the Treasury Amendment are most properly fulfilled by giving effect to the plain meaning of the language as Congress enacted it.The CFTC rejoins that the Treasury Amendment should be construed in the light of Congress' history of regulating options more strictly than futures. See Snider §§ 7.03-7.04; Brief for CFTC 38-39. The Commission submits that this distinction was motivated by the view that options lend475themselves more readily to fraudulent schemes than futures contracts. Hence, the CFTC argues that Congress would have acted reasonably and consistently with prior practice had it regulated commodities differently from options. While that may be true, we give only slight credence to these general historical considerations, which are unsupported by statutory language, or any evidence evocative of the particular concerns focused on by the legislators who enacted the Treasury Amendment. We think the history of the Treasury Amendment suggests-contrary to the CFTC's viewthat it was intended to take all transactions relating to foreign currency not conducted on a board of trade outside of the CEA's ambit. This interpretation is consistent with the fact that, prior to the enactment of the CEA in 1974, foreign currency trading had been entirely unregulated under the commodities laws.Our interpretation is also consonant with the history of evolving congressional regulation in this area. That history has been one of successively broadening the coverage of regulation by the addition of more and more commodities to the applicable legislation.ll It seems quite natural in this context to read the Treasury Amendment's exemption of trans-11 The Grain Futures Act, enacted by Congress in 1922 to authorize the Secretary of Agriculture to supervise trading in grain futures on "contract markets," defined the regulated commodities to include "wheat, corn, oats, barley, rye, flax, and sorghum." 42 Stat. 998. In 1936 Congress expanded the coverage of the legislation to add further agricultural commodities, including cotton, rice, butter, eggs, and Irish potatoes. Ch. 545, 49 Stat. 1491. (The contrast between the title of the 1936 Act-"Commodity Exchange Act" -and the title of its predecessor-"Grain Futures Act"suggests that an easy way to describe the coverage of the legislation is to identify the commodities that it regulates.) In 1968 the coverage of the legislation was again expanded, this time to include livestock and livestock products. 82 Stat. 26. The 1974 amendment expanded the coverage of the statute to include nonagricultural commodities and, appropriately, replaced regulation by the Secretary of Agriculture with regulation by a new commission whose title included the word "Commodity."476actions in foreign currencies as a complete exclusion of that commodity from the regulatory scheme, except, of course, to the extent that the proviso for transactions "conducted on a board of trade" qualifies that exclusion. See 7 U. S. C. § 2(ii).IVTo buttress its reading of the statute, the CFTC argues that elsewhere in the CEA Congress referred to transactions "involving" a particular commodity to describe options or used other "more encompassing terminology," rather than what we are told is the narrower term transactions "in" the commodity, which was reserved for futures, spot transactions, and forward contracts. Brief for CFTC 30-33. Not only do we think it unlikely that Congress would adopt such a subtle method of drawing important distinctions, there is little to suggest that it did so.Congress' use of these terms has been far from consistent.Most strikingly, the use of the word "involving" in the Treasury Amendment itself completely eviscerates the force of the Commission's argument. After setting forth exemptions for, inter alia, "transactions in foreign currency," the amendment contains a proviso sweeping back into the statute's coverage "such transactions involv[ing] the sale thereof for future delivery conducted on a board of trade." 7 U. S. C. § 2(ii) (emphasis added). As we have already noted, the CFTC agrees that futures contracts are a subset of "transactions in foreign currency." The Commission further submits that the proviso uses the word "involve" to make the exemption inapplicable to those futures contracts that are conducted on a board of trade. This contradicts the "in" versus "involving" distinction. We would expect on the Commission's reasoning that this provision would refer to "transactions in futures." The use of the term "involving" instead, within the very amendment that the CFTC claims embraces477this distinction, weighs heavily against the view that any such distinction was intended by Congress.12The CFTC argues further that the proviso properly understood aids its cause. The proviso sweeps back into the CFTC's jurisdiction otherwise exempt "transactions in foreign currency" that "involve the sale thereof for future delivery" and are "conducted on a board of trade." Since the proviso refers to futures without mentioning options, the Commission submits that the exemption itself should be read only to cover futures because Congress cannot reasonably have intended to regulate exchange trading in foreign currency futures without also regulating exchange trading in12 Similarly, the statute refers at one point to "[t]ransactions in commodities involving the sale thereof for future delivery ... and known as 'futures.''' 7 U. S. C. § 5 (emphasis added). Had Congress meant to maintain the Commission's distinction, we would not have expected the Legislature to use the words "in" and "involving" loosely in the same sentence to refer to futures, which the CFTC informs us are transactions "in" (but not "involving") foreign currency. Similarly, the statute refers elsewhere to "transaction[s] in an option on foreign currency." § 6c(f) (emphasis added). If Congress had spoken in the manner the CFTC suggests, that provision would instead use the phrase "transactions involving an option."The statute's general jurisdictional provision also fails to maintain the distinction the Commission presses. The CEA provides that the CFTC "shall have exclusive jurisdiction ... with respect to accounts, agreements (including any transaction which is of the character of, or is commonly known to the trade as, an 'option' ... ), and transactions involving contracts of sale of a commodity for future delivery." § 2(i) (emphasis added). The Commission submits that this language gives the CFTC regulatory authority over options on futures contracts, see Snider § 10.11, and argues that the use of the word "involving" is therefore in keeping with its interpretation of the statutory scheme. See Brief for CFTC 32. But § 2(i) provides the CFTC with exclusive jurisdiction over far more. Among other things, it explicitly grants jurisdiction over any "transactio[n] involving contracts of sale of a commodity for future delivery," plainly meaning at a minimum ordinary futures contracts, which the Commission otherwise insists are transactions "in" commodities.478such options. We agree that Congress intended no such anomaly. But we are satisfied that the anomaly is best avoided by reading the proviso broadly rather than reading the exemption narrowly.The proviso's language fairly accommodates inclusion of both options and futures. To fall within the proviso, a transaction must "involve the sale [of foreign currency] for future delivery." § 2(ii) (emphasis added). Because options convey the right to buy or sell foreign currency at some future time prior to their expiration, they are transactions "involv[ing]" or related to the sale of foreign currency for future delivery. Thus, both futures and options are covered by both the exemption and the proviso. While that may not be the only possible reading of the literal text, and we do not intend to suggest that a similar construction would be required with respect to other provisions of the CEA, our interpretation is faithful to the "contemporary legal context" in which the Treasury Amendment was drafted. Cannon v. University of Chicago, 441 U. S. 677, 699 (1979); see also Massachusetts v. Morash, 490 U. S. 107, 115 (1989) (noting that" 'in expounding a statute, we [are] not ... guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy''') (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 51 (1987)).Finally, the CFTC calls our attention to statements in the legislative history of a 1982 amendment to the CEA,13 indicating that the drafters of that amendment believed that the CFTC had the authority to regulate foreign currency options "when they are traded other than on a national securities exchange." See S. Rep. No. 97-384, p. 22 (1982). Those statements, at best, might be described as "legislative dicta" because the 1982 amendment itself merely resolved a conflict between the Securities Exchange Commission and the CFTC13 Futures Trading Act of 1982, Tit. I, § 102, 96 Stat. 2296, 7 U. S. C. § 6c(f).479concerning their respective authority to regulate transactions on an exchange. See Snider § 10.24. The amendment made no change in the law applicable to off-exchange trading. Although these "dicta" are consistent with the position that the CFTC advocates, they shed no light on the intent of the authors of the Treasury Amendment that had been adopted eight years earlier. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 839-840 (1988).14vUnderlying the statutory construction question before us, we recognize that there is an important public policy dispute-with substantial arguments favoring each side. Pe-14 Though the CFTC's brief disclaims any need for it, Brief for CFTC 48, at oral argument the Commission requested for the first time that we give deference to its interpretation of the Treasury Amendment as the agency "charged with administering" it. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 739 (1996); Tr. of Oral Arg. 54; see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). If Chevron principles were applicable, we are unsure that the CFTC's position would be the one owed deference. As the Commission concedes, Brief for CFTC 25, the Treasury Department has taken a quite different view of the statute-one consonant with the interpretation set forth here-to which petitioners argue deference is owed if Chevron is invoked. A reasonable argument could be made that Congress intended to charge Treasury, rather than the Commission, with administering the dimensions of the aptly named Treasury Amendment, which was specifically enacted at the behest of Treasury to confine the CFTC's activities. Cf. Smiley, 517 U. S., at 740-741 (explaining that Chevron deference arises out of background presumptions of congressional intent); Martin v. Occupational Safety and Health Review Comm'n, 499 U. S. 144, 157-158 (1991) (allocating power "authoritatively to interpret ... regulations" after assessing "available indicia of legislative intent"). We need not "resolve the difficult issues regarding deference which would be lurking in other circumstances." Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 477 (1992). Because "the statute, as a whole, clearly expresses Congress' intention" to include foreign currency options within the Treasury Amendment's exemption, administrative deference is improper. Dole v. Steelworkers, 494 U. S. 26, 42 (1990).480480 DUNN v. COMMODITY FUTURES TRADING COMM'NOpinion of SCALIA, J.titioners, their amici, and the Treasury Department argue that if off-exchange foreign currency options are not treated as exempt from CEA regulation, the increased costs associated with unnecessary regulation of the highly sophisticated OTC foreign currency markets might well drive this business out of the United States.15 The Commission responds that to the extent limited exemptions from regulation are necessary, it will provide them, but argues that options are particularly susceptible to fraud and abuse if not carefully policed. Brief for CFTC 26, 49. As the Commission properly acknowledges, however, these are arguments best addressed to the Congress, not the courts. See United States v. Rutherford, 442 U. S. 544, 555 (1979). Lacking the expertise or authority to assess these important competing claims, we note only that "a literal construction of a statute" does not "yiel[d] results so manifestly unreasonable that they could not fairly be attributed to congressional design." Ibid.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, 1996SyllabusDUNN ET AL. v. COMMODITY FUTURES TRADING COMMISSION ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo.95-1181. Argued November 13, 1996-Decided February 25,1997The Commodity Futures Trading Commission (CFTC) brought this action, claiming that petitioners solicited investments in and operated a fraudulent scheme involving transactions in foreign currency options in violation of the Commodity Exchange Act (CEA) and CFTC regulations. Petitioners allegedly engaged in the transactions by contracting directly with international banks and others, rather than using a regulated exchange or board of trade. This is known as trading in the "offexchange" or "over-the-counter" market. Both petitioners and their customers suffered heavy losses. The District Court appointed a temporary receiver to take control of petitioners' property, rejecting their defense that the transactions were exempt from the CEA under the so-called "Treasury Amendment," which excepts "transactions in foreign currency" unless they involve a sale "for future delivery" "conducted on a board of trade." The Court of Appeals affirmed.Held: The Treasury Amendment exempts from CFTC regulation offexchange trading in foreign currency options. Options (transactions in which the buyer purchases the right, but not the obligation, to buy or sell an agreed amount of a commodity at a set rate at any time prior to the option's expiration) like those at issue here are plainly "transactions in foreign currency" within the statute's meaning. The Court is not persuaded by any of the CFTC's arguments in support of a narrower reading that would exempt futures contracts (agreements to buy or sell a specified quantity of a commodity at a particular price for delivery at a set future date) without exempting options. The normal reading of the last-quoted phrase encompasses all transactions in which foreign currency is the fungible good whose fluctuating market price provides the motive for trading. Reading the text to include only the actual purchase or sale of foreign currency, as the CFTC urges, violates the ordinary meaning of the key word "in." On the CFTC's reasoning, the exemption's application to futures contracts could not be sustained, in clear contravention of Congress' intent to exempt off-exchange foreign currency futures from CFTC regulation. This interpretation would also render the provision mere surplusage, and is not supported by the Treasury Amendment's legislative history. Given the history of evolv-466ing congressional regulation in this area, it is natural to read the exemption as a complete exclusion of foreign currency transactions from the regulatory scheme, except to the extent that the proviso for transactions "conducted on a board of trade" qualifies that exclusion. Contrary to the CFTC's position, there is little to suggest that elsewhere in the CEA Congress used the term transactions "involving" a particular commodity to describe options, and transactions "in" the commodity to indicate a narrower exclusion. The proviso "conducted on a board of trade" does not aid the CFTC's cause because a broad reading of the proviso to include both options and futures is faithful to the contemporary legal context in which the amendment was drafted. The arguments favoring each side in the important public policy dispute over whether offexchange foreign currency options should be exempt from CEA regulation are best addressed to the Congress, not the courts. Pp. 468-480.58 F.3d 50, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 480.Gary D. Stumpp argued the cause for petitioners. With him on the briefs was Adam M. Bond.Jeffrey P. Minear argued the cause for respondents.With him on the brief for respondent Commodity Futures Trading Commission were Acting Solicitor General Dellinger, Deputy Solicitor General Kneedler, Pat G. Nicolette, Jay L. Witkin, and Gracemary Rizzo.*JUSTICE STEVENS delivered the opinion of the Court.The question presented is whether Congress has authorized the Commodity Futures Trading Commission (CFTC or*Briefs of amici curiae urging reversal were filed for Credit Lyonnais et al. by John M. Quitmeyer, Danforth Newcomb, Kent T. Stauffer, and David M. Lindley; and for the Foreign Exchange Committee et al. by Kenneth M. Raisler, Edward J. Rosen, Peter Buscemi, and Maris M. Rodgon.Briefs of amici curiae urging affirmance were filed for the Board of Trade of the City of Chicago by Kenneth W Starr, Mark D. Young, and Richard A. Cordray; and for the Chicago Mercantile Exchange by Jerrold E. Salzman and James T. Malysiak.467Full Text of Opinion

1957_63

MR. JUSTICE BURTON delivered the opinion of the Court.The question before us is whether the Board of Public Education for the School District of Philadelphia, Pennsylvania, violated the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States when the Board, purporting to act under the Pennsylvania Public School Code, discharged a public school teacher on the ground of "incompetency," evidenced by the teacher's refusal of his Superintendent's request to confirm or refute information as to the teacher's loyalty and his activities in certain allegedly subversive organizations. For the reasons hereafter stated, we hold that it did not.On June 25, 1952, Herman A. Beilan, the petitioner, who had been a teacher for about 22 years in the Philadelphia Public School System, presented himself at his Superintendent's office in response to the latter's request. The Superintendent said he had information which Page 357 U. S. 401 reflected adversely on petitioner's loyalty, and he wanted to determine its truth or falsity. In response to petitioner's suggestion that the Superintendent do the questioning, the latter said he would ask one question, and petitioner could then determine whether he would answer it and others of that type. The Superintendent, accordingly, asked petitioner whether or not he had been the Press Director of the Professional Section of the Communist Political Association in 1944. [Footnote 1] Petitioner asked permission to consult counsel before answering, and the Superintendent granted his request.On October 14, 1952, in response to a similar request, petitioner again presented himself at the Superintendent's office. Petitioner stated that he had consulted counsel and that he declined to answer the question as to his activities in 1944. He announced he would also decline to answer any other "questions similar to it," "questions of this type," or "questions about political and religious beliefs. . . ." The Superintendent warned petitioner that this "was a very serious and a very important matter, and that failure to answer the questions might lead to his dismissal." The Superintendent made it clear that he was investigating "a real question of fitness for [petitioner] to be a teacher or to continue in the teaching work." These interviews were given no publicity, and were attended only by petitioner, his Superintendent, and the Assistant Solicitor of the Board.On November 25, 1953, the Board instituted dismissal proceedings against petitioner under § 1127 of the Pennsylvania Public School Code of 1949. [Footnote 2] The only specification Page 357 U. S. 402 which we need consider [Footnote 3] charged that petitioner's refusal to answer his Superintendent's questions constituted "incompetency" under § 1122 of that Code. [Footnote 4] The Board conducted a formal hearing on the charge. Petitioner was present with counsel, but did not testify. Page 357 U. S. 403 Counsel for each side agreed that petitioner's loyalty was not in issue, and that evidence as to his disloyalty would be irrelevant. [Footnote 5] On January 7, 1954, the Board found that the charge of incompetency had been sustained, and, by a vote of fourteen to one, discharged petitioner from his employment as a teacher. Page 357 U. S. 404On an administrative appeal, the Superintendent of Public Instruction of Pennsylvania sustained the local Board. However, on petitioner's appeal to the County Court of Common Pleas, that court set aside petitioner's discharge and held that the Board should have followed the procedure specified by the Pennsylvania Loyalty Act, rather than the Public School Code. Finally, on the Board's appeal, the Supreme Court of Pennsylvania, with two justices dissenting, reversed the Court of Common Pleas and reinstated petitioner's discharge. 386 Pa. 82, 98, 110, 125 A.2d 327, 334, 340. We granted certiorari. 353 U.S. 964.In addition to the Public School Code, Pennsylvania has a comprehensive Loyalty Act which provides for the discharge of public employees on grounds of disloyalty or subversive conduct. Purdon's Pa.Stat.Ann., 1941 (Cum.Ann.Pocket Pt., 1957), Tit. 65, §§ 211-225. Petitioner stresses the fact that the question asked of him by his Superintendent related to his loyalty. He contends that he was discharged for suspected disloyalty, and that his discharge is invalid because of failure to follow the Loyalty Act procedure. However, the Pennsylvania Supreme Court held that the Board was not limited to proceeding under the Loyalty Act, even though the questions asked of petitioner related to his loyalty. We are bound by the interpretation thus given to the Pennsylvania statutes by the Supreme Court of Pennsylvania. Barsky v. Board of Regents, 347 U. S. 442, 347 U. S. 448; Chicago, M., St. P. & P. R. Co. v. Risty, 276 U. S. 567, 276 U. S. 570. The only question before us is whether the Federal Constitution prohibits petitioner's discharge for statutory "incompetency" based on his refusal to answer the Superintendent's questions. [Footnote 6] Page 357 U. S. 405By engaging in teaching in the public schools, petitioner did not give up his right to freedom of belief, speech or association. He did, however, undertake obligations of frankness, candor and cooperation in answering inquiries made of him by his employing Board examining into his fitness to serve it as a public school teacher."A teacher works in a sensitive area in a schoolroom. There, he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society cannot be doubted."Adler v. Board of Education, 342 U. S. 485, 342 U. S. 493.As this Court stated in Garner v. Board of Public Works, 341 U. S. 716, 341 U. S. 720"We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service."The question asked of petitioner by his Superintendent was relevant to the issue of petitioner's fitness and suitability to serve as a teacher. Petitioner is not in a position to challenge his dismissal merely because of the remoteness in time of the 1944 activities. It was apparent from the circumstances of the two interviews that the Superintendent had other questions to ask. Petitioner's refusal to answer was not based on the remoteness of his 1944 activities. He made it clear that he would not answer any question of the same type as the one asked. Petitioner blocked from the beginning any inquiry into his Communist activities, however relevant to his present loyalty. The Board based its dismissal upon petitioner's Page 357 U. S. 406 refusal to answer any inquiry about his relevant activities -- not upon those activities themselves. It took care to charge petitioner with incompetency, and not with disloyalty. It found him insubordinate and lacking in frankness and candor -- it made no finding as to his loyalty.We find no requirement in the Federal Constitution that a teacher's classroom conduct be the sole basis for determining his fitness. Fitness for teaching depends on a broad range of factors. The Pennsylvania tenure provision [Footnote 7] specifies several disqualifying grounds, including immorality, intemperance, cruelty, mental derangement, and persistent and willful violation of the school laws, as well as "incompetency." However, the Pennsylvania statute, unlike those of many other States, contains no catch-all phrase, such as "conduct unbecoming a teacher," [Footnote 8] to cover disqualifying conduct not included within the more specific provisions. Consequently, the Pennsylvania courts have given "incompetency" a broad interpretation. This was made clear in Horosko v. Mt. Pleasant School District, 335 Pa. 369, 371, 374-375, 6 A.2d 866, 868, 869-870:"If the fact be that she 'now commands neither the respect nor the good will of the community' and if the record shows that effect to be the result of her Page 357 U. S. 407 conduct within the clause quoted, it will be conclusive evidence of incompetency. It has always been the recognized duty of the teacher to conduct himself in such way as to command the respect and good will of the community, though one result of the choice of a teacher's vocation may be to deprive him of the same freedom of action enjoyed by persons in other vocations. Educators have always regarded the example set by the teacher as of great importance. . . .""* * * *" "The term 'incompetency' has a 'common and approved usage.' The context does not limit the meaning of the word to lack of substantive knowledge of the subjects to be taught. Common and approved usage give a much wider meaning. For example, in 31 C.J., with reference to a number of supporting decisions, it is defined:""A relative term without technical meaning. It may be employed as meaning disqualification; inability; incapacity; lack of ability, legal qualifications, or fitness to discharge the required duty.""In Black's Law Dictionary, 3rd edition, page 945, and in 1 Bouv.Law Dict., Rawle's Third Revision, p. 1528, it is defined as 'Lack of ability or fitness to discharge the required duty.' Cases construing the word to the same effect are found in 4 Words and Phrases, First Series, page 3510, and 2 Words and Phrases, Second Series, page 1013. Webster's New International Dictionary defines it as 'want of physical, intellectual, or moral ability; insufficiency; inadequacy; specif., want of legal qualifications or fitness.' Funk & Wagnalls Standard Dictionary defines it as 'General lack of capacity of fitness, or lack of the special qualities required for a particular purpose.' Page 357 U. S. 408 In the Horosko case, a teacher was discharged for 'incompetency' because of her after-hours activity in her husband's beer garden, serving as a bartender and waitress, occasionally drinking beer, shaking dice with the customers for drinks, and playing the pinball machine. Cf. Schwer's Appeal, 36 Pa.Dist. & Co. R. 531, 536."In the instant case, the Pennsylvania Supreme Court has held that "incompetency" includes petitioner's"deliberate and insubordinate refusal to answer the questions of his administrative superior in a vitally important matter pertaining to his fitness."386 Pa. at 91, 125 A.2d at 331. This interpretation is not inconsistent with the Federal Constitution.Petitioner complains that he was denied due process because he was not sufficiently warned of the consequences of his refusal to answer his Superintendent. The record, however, shows that the Superintendent, in his second interview, specifically warned petitioner that his refusal to answer "was a very serious and a very important matter, and that failure to answer the questions might lead to his dismissal." That was sufficient warning to petitioner that his refusal to answer might jeopardize his employment. Furthermore at petitioner's request, his Superintendent gave him ample opportunity to consult counsel. There was no element of surprise.Our recent decisions in Slochower v. Board of Higher Education, 350 U. S. 551, and Konigsberg v. State Bar of California, 353 U. S. 252, are distinguishable. In each, we envisioned and distinguished the situation now before us. In the Slochower case, at 350 U. S. 558, the Court said:"It is one thing for the city authorities themselves to inquire into Slochower's fitness, but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at 'the property, affairs, Page 357 U. S. 409 or government of the city, or . . . official conduct of city employees.' In this respect, the present case differs materially from Garner [341 U.S. 716], where the city was attempting to elicit information necessary to determine the qualifications of its employees. Here, the Board had possessed the pertinent information for 12 years, and the questions which Professor Slochower refused to answer were admittedly asked for a purpose wholly unrelated to his college functions. On such a record, the Board cannot claim that its action was part of a bona fide attempt to gain needed and relevant information."In the Konigsberg case, supra, at 353 U. S. 259-261, this Court stressed the fact that the action of the State was not based on the mere refusal to answer relevant questions; rather, it was based on inferences impermissibly drawn from the refusal. In the instant case, no inferences at all were drawn from petitioner's refusal to answer. The Pennsylvania Supreme Court merely equated refusal to answer the employing Board's relevant questions with statutory "incompetency."Inasmuch as petitioner's dismissal did not violate the Federal Constitution, the judgment of the Supreme Court of PennsylvaniaAffirmed

U.S. Supreme CourtBeilan v. Board of Education, 357 U.S. 399 (1958)Beilan v. Board of Education, School District of PhiladelphiaNo. 63Argued March 4, 1958Decided June 30, 1958357 U.S. 399SyllabusPetitioner, a teacher in the public schools of Philadelphia, refused to answer questions relating to Communistic affiliations and activities asked by his Superintendent, after being warned that the inquiry related to his fitness to be a teacher, and that refusal to answer might lead to his dismissal. After administrative proceedings in which his loyalty and his political beliefs and associations were not in issue, the Board of Education found that his refusal to answer his Superintendent's questions constituted "incompetency," a ground for discharge under the state tenure statute, and discharged him. The State Supreme Court sustained this action.Held: his discharge did not violate the Due Process Clause of the Fourteenth Amendment. Pp. 357 U. S. 400-409.(a) By engaging in teaching in public schools, petitioner did not give up his right to freedom of belief, speech or association, but he did undertake obligations of frankness, candor, and cooperation in answering inquiries made by his superior examining into his fitness to serve as a public school teacher. P. 357 U. S. 405.(b) A municipal employer is not disabled, because it is an agency of the State, from inquiry of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Garner v. Board of Public Works, 341 U. S. 716. P. 357 U. S. 405.(c) The questions petitioner refused to answer were relevant to his fitness and suitability as a teacher, and his discharge was based upon his insubordination and lack of frankness and candor in refusing to answer such questions -- not upon disloyalty or any of the activities inquired about. Pp. 357 U. S. 405-406.(d) The Federal Constitution does not require that a teacher's classroom conduct be the sole basis for determining his fitness. P. 357 U. S. 406.(e) The State Supreme Court held that "incompetency," within the meaning of the relevant state statute, includes petitioner's Page 357 U. S. 400 "deliberate and insubordinate refusal to answer the questions of his administrative superior in a vitally important matter pertaining to his fitness," and this interpretation is not inconsistent with the Federal Constitution. Pp. 357 U. S. 406-408.(f) Petitioner's claim that he was denied due process because he was not sufficiently warned of the consequences of his refusal to answer his Superintendent's questions is not supported by the record. P. 357 U. S. 408.(g) Slochower v. Board of Education, 350 U. S. 551, and Konigsberg v. State Bar of California, 353 U. S. 252, distinguished. Pp. 357 U. S. 408-409.386 Pa. 82, 125 A.2d 327, affirmed.

1983_83-5596

STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 468 U. S. 467.JUSTICE BLACKMUN delivered the opinion of the Court.This case presents questions regarding the administration of Florida's capital sentencing statute. In particular, petitioner challenges the trial court's failure to instruct the jury on lesser included offenses of capital murder. He also challenges the court's imposition of a sentence of death when the jury had recommended life. We conclude that, on the facts of this case, it was not error for the trial judge to refuse to give the lesser included offense instruction, and that there is no constitutional requirement that the jury's recommendation of life be final. We also reject petitioner's argument that, as applied in this case, the Florida standards for overriding a jury's sentencing recommendation are so broad and vague as to violate the constitutional requirement of reliability in capital sentencing. Page 468 U. S. 450IPetitioner Joseph Robert Spaziano was indicted and tried for first-degree murder. The indictment was brought two years and one month after the alleged offense. Under the Florida statute of limitations in effect at the time of the alleged offense, August, 1973, the limitations period for noncapital offenses was two years. Fla.Stat. § 932.465(2) (1973). [Footnote 1] There was no statute of limitations for capital offenses, such as first-degree murder. § 932.465(1).The primary evidence against petitioner was given by a witness who testified that petitioner had taken him to a garbage dump in Seminole County, Fla., where petitioner had pointed out the remains of two women he claimed to have tortured and murdered. Petitioner challenged the sufficiency of the witness' recall and perception because of a substantial drug habit. The witness testified that he had not taken drugs on the day of the visit to the garbage dump, and he had been able to direct the police to the site. See Spaziano v. State, 393 So. 2d 1119, 1120 (Fla.1981).At the close of the evidence, the trial court informed petitioner that it would instruct the jury on the lesser included, noncapital offenses of attempted first-degree murder, second-degree murder, third-degree murder, and manslaughter, if petitioner would waive the statute of limitations as to those offenses. Tr. 751-755. Petitioner refused to waive the statute. The court accordingly instructed the jury solely on capital murder.The jury deliberated somewhat more than six hours. It reported itself deadlocked, and the trial court gave an additional instruction, encouraging the jurors to resolve their differences Page 468 U. S. 451 and come to a common conclusion. [Footnote 2] Shortly thereafter, the jury returned a verdict of guilty of first-degree murder.The trial court then convened a sentencing hearing before the same jury. Arguments were heard from both sides, and evidence offered on aggravating and mitigating circumstances. A majority of the jury recommended life imprisonment. [Footnote 3] In Florida, the jury's sentencing recommendation in a capital case is only advisory. The trial court is to conduct its own weighing of the aggravating and mitigating circumstances and, "[n]otwithstanding the recommendation of a majority of the jury," is to enter a sentence of life imprisonment or death; in the latter case, specified written findings are required. Fla.Stat. § 921.141(3) (1983). [Footnote 4] The trial court Page 468 U. S. 452 concluded that,"notwithstanding the recommendation of the jury, . . . sufficient aggravating circumstances existed to justify and authorize a death sentence[;] . . . the mitigating circumstances were insufficient to outweigh such aggravating circumstances, and . . . a sentence of death should be imposed in this case."App. 14. The two aggravating circumstances found by the court were that the homicide was especially heinous and atrocious and that the defendant had been convicted previously of felonies involving the use or threat of violence to the person. The trial court found no mitigating circumstance "except, perhaps, the age [28] of the defendant." Id. at 14-15.On appeal, the Supreme Court of Florida affirmed the conviction, but reversed the death sentence. Spaziano v. State, 393 So. 2d 1119 (1981). In deciding whether to impose the death sentence, the trial judge had considered a confidential portion of the presentence investigation report that contained information about petitioner's previous felony convictions as well as other charges for which petitioner had not been convicted. Neither party had received a copy of that confidential portion. Relying on Gardner v. Florida, 430 U. S. 349 (1977), the court concluded that it was error for the trial judge to rely on the confidential information in the presentence investigation report without first disclosing the information to petitioner and giving him an opportunity to present evidence in response.In a memorandum of supplemental authority, petitioner also urged that Beck v. Alabama, 447 U. S. 625 (1980), required reversal of his conviction because of the trial court's failure to instruct the jury on the lesser included offenses absent a waiver of the statute of limitations on those offenses. The Supreme Court found Beck inapposite. Beck concerned an express statutory prohibition on instructions for lesser included offenses. The court found nothing in Beck requiring Page 468 U. S. 453 that the jury determine the guilt or innocence of lesser included offenses for which the defendant could not be convicted and adjudicated guilty. This Court denied certiorari. 454 U. S. 1037(1981).On remand, the trial court ordered a new presentence investigation report and scheduled a hearing to allow petitioner to present evidence in response to the report. At the hearing, petitioner offered no evidence. The State presented evidence that petitioner had been convicted previously of forcible carnal knowledge and aggravated battery. Although the State had attempted to introduce evidence of the prior conviction in petitioner's initial sentencing hearing before the jury, the trial judge had excluded the evidence on the ground that the conviction was then on appeal. By the time of the Gardner rehearing, the conviction was final, and the trial judge agreed that it was a proper consideration. Accordingly, he relied on that conviction in finding the aggravating circumstance that the defendant had been convicted previously of a felony involving the use of violence to the person. The judge also reaffirmed his conclusion that the crime was especially heinous, atrocious, and cruel. He sentenced petitioner to death. App. 25.The Supreme Court of Florida affirmed. 433 So. 2d 508 (1983). It rejected petitioner's argument that the trial court erred in allowing the State to introduce evidence of a previous conviction not considered in the original sentencing phase. The court noted that the information was in the original presentence investigation report. The only reason it was not considered was that the trial court mistakenly thought that, under Florida law, it could not be considered, since the conviction was then on appeal.The Supreme Court also found no constitutional infirmity in the procedure whereby the judge is allowed to override the jury's recommendation of life. The court found no double jeopardy problem with the procedure, because the jury's function is only advisory. The court added its understanding that allowing the jury's recommendation to be binding would Page 468 U. S. 454 violate the requirements of Furman v. Georgia, 408 U. S. 238 (1972).Finally, the court found that, in this case, the evidence suggesting that the death sentence be imposed over the jury's recommendation of life"meets the clear and convincing test to allow override of the jury's recommendation in accordance with . . . Tedder v. State, 322 So. 2d 908 (Fla.1975)."433 So. 2d at 511. One judge dissented, finding "no compelling reason" to override the jury's recommendation of life. Id. at 512.We granted certiorari, 464 U.S. 1038 (1984), and we now affirm.IIWe turn first to the trial court's refusal to give an instruction on lesser included offenses. In Beck v. Alabama, supra, the Court recognized the risk of an unwarranted conviction that is created when the jury is deprived of the "third option" of convicting the defendant of a lesser included offense. Id. at 447 U. S. 637. See also Keeble v. United States, 412 U. S. 205, 412 U. S. 212-213 (1973). We concluded that "[s]uch a risk cannot be tolerated in a case in which the defendant's life is at stake," and that,"if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [a State] is constitutionally prohibited from withdrawing that option from the jury in a capital case."447 U.S. at 447 U. S. 637-638. The issue here is whether the defendant is entitled to the benefit of both the lesser included offense instruction and an expired period of limitations on those offenses. [Footnote 5] Page 468 U. S. 455Petitioner urges that he should not be required to waive a substantive right -- to a statute of limitations defense -- in order to receive a constitutionally fair trial. Beck made clear that, in a capital trial, a lesser included offense instruction is a necessary element of a constitutionally fair trial. Thus, petitioner claims, he is entitled to the benefit of the Beck rule regardless of whether the statute of limitations prevents him from actually being punished on a lesser included offense.We, of course, have no quarrel with petitioner's general premise that a criminal defendant may not be required to waive a substantive right as a condition for receiving an otherwise constitutionally fair trial. We do not agree that the premise fairly applies to petitioner's situation. Petitioner would have us divorce the Beck rule from the reasoning on which it was based. The element the Court in Beck found essential to a fair trial was not simply a lesser included offense instruction in the abstract, but the enhanced rationality and reliability the existence of the instruction introduced into the jury's deliberations. Where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process. Beck does not require that result.The Court in Beck recognized that the jury's role in the criminal process is essentially unreviewable, and not always rational. The absence of a lesser included offense instruction increases the risk that the jury will convict not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free. In Beck, the Court found that risk unacceptable and inconsistent with the reliability this Court has demanded in capital proceedings. Id. at 447 U. S. 643. The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence. Id. at 443 U. S. 638-643. Requiring that the jury be instructed on lesser included offenses for which the defendant may not be convicted, however, Page 468 U. S. 456 would simply introduce another type of distortion into the factfinding process.We reaffirm our commitment to the demands of reliability in decisions involving death and to the defendant's right to the benefit of a lesser included offense instruction that may reduce the risk of unwarranted capital convictions. But we are unwilling to close our eyes to the social cost of petitioner's proposed rule. Beck does not require that the jury be tricked into believing that it has a choice of crimes for which to find the defendant guilty if, in reality, there is no choice. Such a rule not only would undermine the public's confidence in the criminal justice system, but it also would do a serious disservice to the goal of rationality on which the Beck rule is based.If the jury is not to be tricked into thinking that there is a range of offenses for which the defendant may be held accountable, then the question is whether Beck requires that a lesser included offense instruction be given, with the defendant being forced to waive the expired statute of limitations on those offenses, or whether the defendant should be given a choice between having the benefit of the lesser included offense instruction or asserting the statute of limitations on the lesser included offenses. We think the better option is that the defendant be given the choice.As the Court in Beck recognized, the rule regarding a lesser included offense instruction originally developed as an aid to the prosecution. If the State failed to produce sufficient evidence to prove the crime charged, it might still persuade the jury that the defendant was guilty of something. Id. at 447 U. S. 633. See also 3 C. Wright, Federal Practice and Procedure § 515, p. 20, n. 2 (2d ed.1982). Although the Beck rule rests on the premise that a lesser included offense instruction in a capital case is of benefit to the defendant, there may well be cases in which the defendant will be confident enough that the State has not proved capital murder that he will want to take his chances with the jury. If so, we see Page 468 U. S. 457 little reason to require him not only to waive his statute of limitations defense but also to give the State what he perceives as an advantage -- an opportunity to convict him of a lesser offense if it fails to persuade the jury that he is guilty of capital murder. In this case, petitioner was given a choice whether to waive the statute of limitations on the lesser offenses included in capital murder. He knowingly chose not to do so. [Footnote 6] Under those circumstances, it was not error for the trial judge to refuse to instruct the jury on the lesser included offenses.IIIPetitioner's second challenge concerns the trial judge's imposition of a sentence of death after the jury had recommended life imprisonment. Petitioner urges that allowing a judge to override a jury's recommendation of life violates the Eighth Amendment's proscription against "cruel and unusual punishments." Because the jury's verdict of life should be final, petitioner argues, the practice also violates the Fifth Page 468 U. S. 458 Amendment's Double Jeopardy Clause made applicable to the States through the Fourteenth Amendment. See Benton v. Maryland, 395 U. S. 784, 395 U. S. 793-796 (1969). Finally, drawing on this Court's recognition of the value of the jury's role, particularly in a capital proceeding, petitioner urges that the practice violates the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment.Petitioner points out that we need not decide whether jury sentencing in all capital cases is required; this case presents only the question whether, given a jury verdict of life, the judge may override that verdict and impose death. As counsel acknowledged at oral argument, however, his fundamental premise is that the capital sentencing decision is one that, in all cases, should be made by a jury. Tr. of Oral Arg. 16-17. We therefore address that fundamental premise. Before doing so, however, it is useful to clarify what is not at issue here.Petitioner does not urge that capital sentencing is so much like a trial on guilt or innocence that it is controlled by the Court's decision in Duncan v. Louisiana, 391 U. S. 145 (1968). In Duncan, the Court found that the right to jury trial guaranteed by the Sixth Amendment is so "basic in our system of jurisprudence,'" id. at 391 U. S. 149, quoting In re Oliver, 333 U. S. 257, 333 U. S. 273 (1948), that it is also protected against state action by the Fourteenth Amendment.This Court, of course, has recognized that a capital proceeding in many respects resembles a trial on the issue of guilt or innocence. See Bullington v. Missouri, 451 U. S. 430, 451 U. S. 444 (1981). Because the"'embarrassment, expense and ordeal' . . . faced by a defendant at the penalty phase of a . . . capital murder trial . . . are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial,"the Court has concluded that the Double Jeopardy Clause bars the State from making repeated efforts to persuade a sentencer to impose the death penalty. Id. at 451 U. S. 445, quoting Green v. United States, 355 U. S. 184, 355 U. S. 187 (1957); Arizona v. Page 468 U. S. 459 Rumsey, 467 U. S. 203 (1984). The fact that a capital sentencing is like a trial in the respects significant to the Double Jeopardy Clause, however, does not mean that it is like a trial in respects significant to the Sixth Amendment's guarantee of a jury trial. The Court's concern in Bullington was with the risk that the State, with all its resources, would wear a defendant down, thereby leading to an erroneously imposed death penalty. 451 U.S. at 451 U. S. 445. There is no similar danger involved in denying a defendant a jury trial on the sentencing issue of life or death. The sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant and the sentencer's decision for life is final. Arizona v. Rumsey, supra. More important, despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding -- a determination of the appropriate punishment to be imposed on an individual. See Lockett v. Ohio, 438 U. S. 586, 438 U. S. 604-605 (1978) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 428 U. S. 304 (1976) (plurality opinion), citing Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 302 U. S. 55 (1937), and Williams v. New York, 337 U. S. 241, 337 U. S. 247-249 (1949). The Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue.Nor does petitioner urge that this Court's recognition of the "qualitative difference" of the death penalty requires the benefit of a jury. In Furman v. Georgia, 408 U.S. at 408 U. S. 238, the Court struck down the then-existing capital sentencing statutes of Georgia and Texas, in large part because of its conclusion that, under those statutes, the penalty was applied arbitrarily and discriminatorily. See also Gregg v. Georgia, 428 U. S. 153, 428 U. S. 188 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.). Since then, the Court has emphasized its pursuit of the "twin objectives" of "measured, consistent application and fairness to the accused." Eddings Page 468 U. S. 460 v. Oklahoma, 455 U. S. 104, 455 U. S. 110-111 (1982). [Footnote 7] If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not. Zant v. Stephens, 462 U. S. 862, 462 U. S. 873-880 (1983); Furman v. Georgia, 408 U.S. at 408 U. S. 294 (BRENNAN, J., concurring). It must also allow the sentencer to consider the individual circumstances of the defendant, his background, and his crime. Lockett v. Ohio, supra.Nothing in those twin objectives suggests that the sentence must or should be imposed by a jury. While it is to be hoped that current procedures have greatly reduced the risk that jury sentencing will result in arbitrary or discriminatory application of the death penalty, see Gregg v. Georgia, 428 U.S. at 428 U. S. 190-195 (joint opinion), there certainly is nothing in the safeguards necessitated by the Court's recognition of the qualitative difference of the death penalty that requires that the sentence be imposed by a jury. Page 468 U. S. 461Petitioner's primary argument is that the laws and practice in most of the States indicate a nearly unanimous recognition that juries, not judges, are better equipped to make reliable capital sentencing decisions, and that a jury's decision for life should be inviolate. The reason for that recognition, petitioner urges, is that the nature of the decision whether a defendant should live or die sets capital sentencing apart, and requires that a jury have the ultimate word. Noncapital sentences are imposed for various reasons, including rehabilitation, incapacitation, and deterrence. In contrast, the primary justification for the death penalty is retribution. As has been recognized,"the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death."Id. at 428 U. S. 184. The imposition of the death penalty, in other words, is an expression of community outrage. Since the jury serves as the voice of the community, the jury is in the best position to decide whether a particular crime is so heinous that the community's response must be death. If the answer is no, that decision should be final.Petitioner's argument obviously has some appeal. But it has two fundamental flaws. First, the distinctions between capital and noncapital sentences are not so clear as petitioner suggests. Petitioner acknowledges, for example, that deterrence may be a justification for capital as well as for noncapital sentences. He suggests only that deterrence is not a proper consideration for particular sentencers who are deciding whether the penalty should be imposed in a given case. The same is true, however, in noncapital cases. Whatever the sentence, its deterrent function is primarily a consideration for the legislature. Gregg v. Georgia, 428 U.S. at 428 U. S. 186 (joint opinion). Similar points can be made about the other purposes of capital and noncapital punishment. Although incapacitation has never been embraced as a sufficient justification for the death penalty, it is a legitimate consideration Page 468 U. S. 462 in a capital sentencing proceeding. Id. at 428 U. S. 183, n. 28; Jurek v. Texas, 428 U. S. 262 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.). While retribution clearly plays a more prominent role in a capital case, retribution is an element of all punishments society imposes, and there is no suggestion as to any of these that the sentence may not be imposed by a judge.Second, even accepting petitioner's premise that the retributive purpose behind the death penalty is the element that sets the penalty apart, it does not follow that the sentence must be imposed by a jury. Imposing the sentence in individual cases is not the sole or even the primary vehicle through which the community's voice can be expressed. This Court's decisions indicate that the discretion of the sentencing authority, whether judge or jury, must be limited and reviewable. See, e.g., Gregg v. Georgia, supra; Woodson v. North Carolina, 428 U.S. at 428 U. S. 302-303; Zant v. Stephens, 462 U.S. at 462 U. S. 879-880. The sentencer is responsible for weighing the specific aggravating and mitigating circumstances the legislature has determined are necessary touchstones in determining whether death is the appropriate penalty. Thus, even if it is a jury that imposes the sentence, the "community's voice" is not given free rein. The community's voice is heard at least as clearly in the legislature when the death penalty is authorized and the particular circumstances in which death is appropriate are defined. See Gregg v. Georgia, 428 U.S. at 428 U. S. 183-184 (joint opinion); Furman v. Georgia, 408 U.S. at 408 U. S. 394-395 (BURGER, C.J., dissenting); id. at 408 U. S. 452-454 (POWELL, J., dissenting).We do not denigrate the significance of the jury's role as a link between the community and the penal system and as a bulwark between the accused and the State. See Gregg v. Georgia, 428 U.S. at 428 U. S. 181 (joint opinion); Williams v. Florida, 399 U. S. 78, 399 U. S. 100 (1970); Duncan v. Louisiana, 391 U.S. at 391 U. S. 156; Witherspoon v. Illinois, 391 U. S. 510, 391 U. S. 519, n. 15 (1968). The point is simply that the purpose of the Page 468 U. S. 463 death penalty is not frustrated by, or inconsistent with, a scheme in which the imposition of the penalty in individual cases is determined by a judge. [Footnote 8]We also acknowledge the presence of the majority view that capital sentencing, unlike other sentencing, should be performed by a jury. As petitioner points out, 30 out of 37 jurisdictions with a capital sentencing statute give the life-or-death decision to the jury, with only 3 of the remaining 7 allowing a judge to override a jury's recommendation of life. [Footnote 9] Page 468 U. S. 464 The fact that a majority of jurisdictions have adopted a different practice, however, does not establish that contemporary standards of decency are offended by the jury override. The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws."Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment"is violated by a challenged practice. See Enmund v. Florida, 458 U. S. 782, 458 U. S. 797 (1982); Coker v. Georgia, 433 U. S. 584, 433 U. S. 597 (1977) (plurality opinion). In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.As the Court several times has made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme. See Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U.S. at 462 U. S. 884; Gregg v. Georgia, 428 U.S. at 428 U. S. 195 (joint opinion). The Court twice has concluded that Florida has struck a reasonable balance between sensitivity to the individual and his circumstances and ensuring that the penalty is not imposed arbitrarily or discriminatorily. Barclay v. Florida, 463 Page 468 U. S. 465 U.S. 939 (1983); Proffitt v. Florida, 428 U. S. 242, 428 U. S. 252 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.). We are not persuaded that placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision.IVOur determination that there is no constitutional imperative that a jury have the responsibility of deciding whether the death penalty should be imposed also disposes of petitioner's double jeopardy challenge to the jury-override procedure. If a judge may be vested with sole responsibility for imposing the penalty, then there is nothing constitutionally wrong with the judge's exercising that responsibility after receiving the advice of the jury. The advice does not become a judgment simply because it comes from the jury.VPetitioner's final challenge is to the application of the standard the Florida Supreme Court has announced for allowing a trial court to override a jury's recommendation of life. See Tedder v. State, 322 So. 2d 908, 910 (1975). This Court already has recognized the significant safeguard the Tedder standard affords a capital defendant in Florida. See Dobbert v. Florida, 432 U. S. 282, 432 U. S. 294-295 (1977). See also Proffitt, 428 U.S. at 428 U. S. 249 (joint opinion). We are satisfied that the Florida Supreme Court takes that standard seriously, and has not hesitated to reverse a trial court if it derogates the jury's role. See Richardson v. State, 437 So. 2d 1091, 1095 (Fla.1983); Miller v. State, 332 So. 2d 65 (Fla.1976). Our responsibility, however, is not to second-guess the deference accorded the jury's recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory. Page 468 U. S. 466We see nothing that suggests that the application of the jury-override procedure has resulted in arbitrary or discriminatory application of the death penalty, either in general or in this particular case. Regardless 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. If the judge imposes a sentence of death, he must set forth in writing the findings on which the sentence is based. Fla.Stat. § 921.141(3) (1983). The Florida Supreme Court must review every capital sentence to ensure that the penalty has not been imposed arbitrarily or capriciously. § 921.141(4). As JUSTICE STEVENS noted in Barclay, there is no evidence that the Florida Supreme Court has failed in its responsibility to perform meaningful appellate review of each death sentence, either in cases in which both the jury and the trial court have concluded that death is the appropriate penalty or in cases when the jury has recommended life and the trial court has overridden the jury's recommendation and sentenced the defendant to death. See Barclay v. Florida, 463 U.S. at 463 U. S. 971-972, and n. 23 (opinion concurring in judgment).In this case, the trial judge based his decision on the presence of two statutory aggravating circumstances. The first, that the defendant had previously been convicted of another capital felony or of a felony involving the use or threat of violence to the person, § 921.141(5), was based on evidence not available to the advisory jury but, under Florida law, was properly considered by the trial judge. See White v. State, 403 So. 2d 331, 339-340 (1981). Petitioner's prior conviction was for rape and aggravated battery. The trial judge also found that the murder in this case was heinous, atrocious, and cruel. The witness who accompanied petitioner to the dump site where the victim's body was found testified that the body was covered with blood and that there were cuts on the breasts, stomach, and chest. The witness also testified that petitioner had recounted his torture of the victim while Page 468 U. S. 467 she was still living. The trial judge found no mitigating circumstances.The Florida Supreme Court reviewed petitioner's sentence and concluded that the death penalty was properly imposed under state law. It is not our function to decide whether we agree with the majority of the advisory jury or with the trial judge and the Florida Supreme Court. See Barclay v. Florida, 463 U.S. at 463 U. S. 968 (STEVENS, J., concurring in judgment). Whether or not "reasonable people" could differ over the result here, we see nothing irrational or arbitrary about the imposition of the death penalty in this case.The judgment of the Supreme Court of Florida is affirmed.It is so ordered

U.S. Supreme CourtSpaziano v. Florida, 468 U.S. 447 (1984)Spaziano v. FloridaNo. 83-5596Argued April 17, 1984Decided July 2, 1984468 U.S. 447SyllabusAt petitioner's trial for first-degree murder, the Florida trial court informed him that it would instruct the jury on lesser included, noncapital offenses if he would waive the statute of limitations, which had expired as to those offenses. Petitioner refused to waive the statute, and the jury was instructed solely on capital murder. After the jury returned a verdict of guilty of first-degree murder, a sentencing hearing was conducted before the same jury, a majority of which recommended life imprisonment. Under Florida law, the jury's sentencing recommendation in a capital case is only advisory, and the trial court must conduct its own weighing of the aggravating and mitigating circumstances to determine the proper sentence. If a death sentence is imposed, specified written findings are required. In this case, the trial court imposed the death sentence and entered its findings in support thereof. The Florida Supreme Court affirmed the conviction, rejecting petitioner's contention that Beck v. Alabama, 447 U. S. 625 -- which held that a statute prohibiting lesser included offense instructions in capital cases was unconstitutional -- required reversal because of the trial court's failure to instruct the jury on lesser included offenses absent a waiver of the statute of limitations on those offenses. However, the Florida Supreme Court reversed the death sentence because of the trial judge's consideration of a confidential portion of the presentence investigation report, neither party having received a copy of the confidential portion. On remand, the trial court again imposed the death penalty after a hearing to allow petitioner to present evidence in response to a new presentence investigation report. The Florida Supreme Court affirmed, holding, inter alia, that there was no constitutional infirmity in the Florida procedure whereby the judge is allowed to override the jury's recommendation of life imprisonment.Held:1. On the facts, it was not error for the trial judge to refuse to instruct the jury on lesser included offenses. Beck v. Alabama, supra, recognized the risk of an unwarranted conviction that is created when the jury is deprived of the "third option" of convicting the defendant of a lesser included offense. Petitioner's general premise that a criminal defendant may not be required to waive a substantive right -- here the right to a statute of limitations -- as a condition for receiving an otherwise constitutionally Page 468 U. S. 448 fair trial does not apply to petitioner's situation. In Beck, the element found to be essential to a fair trial was not simply a lesser included offense instruction in the abstract, but the enhanced rationality and reliability the existence of the instruction introduced into the jury's deliberations. Where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process. The defendant has the option of waiving the expired statute of limitations on lesser included offenses in order to have the jury instructed on those offenses, or of asserting the statute of limitations. Pp. 468 U. S. 454-457.2. There is no constitutional requirement that a jury's recommendation of life imprisonment in a capital case be final, so as to preclude the trial judge from overriding the jury's recommendation and imposing the death sentence. The fundamental issue in a capital sentencing proceeding is the determination of the appropriate punishment to be imposed on an individual, and the Sixth Amendment does not guarantee a right to a jury determination of that issue. Nothing in the safeguards against arbitrary and discriminatory application of the death penalty necessitated by the qualitative difference of the penalty requires that the sentence be imposed by a jury. And the purposes of the death penalty are not frustrated by, or inconsistent with, a scheme in which imposition of the penalty is determined by a judge. The fact that the majority of jurisdictions with capital sentencing statutes give the life-or-death decision to the jury does not establish that contemporary standards of fairness and decency are offended by the jury override. The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws. Pp. 468 U. S. 457-465.3. The determination that there is no constitutional imperative that a jury have the responsibility of deciding whether the death penalty should be imposed also disposes of petitioner's double jeopardy challenge to the jury-override procedure. If the judge is vested with sole responsibility for imposing the penalty, the jury's advice does not become a judgment simply because it comes from the jury. P. 468 U.S. 465.4. Application of the Florida standards allowing a trial court to override a jury's recommendation of a life sentence does not violate the constitutional requirement of reliability in capital sentencing. There is no indication that the application of the jury-override procedure has resulted in arbitrary or discriminatory application of the death penalty, either in general or in this particular case. The trial judge here based his decision on the presence of two statutory aggravating circumstances and the absence of any mitigating circumstances. The Florida Supreme Court reviewed petitioner's sentence and concluded that the death penalty Page 468 U. S. 449 was properly imposed under state law. Whether or not "reasonable people" could differ over the result, there is nothing irrational or arbitrary about the imposition of petitioner's death penalty. Pp. 468 U.S. 465-467.433 So. 2d 508, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL and O'CONNOR, JJ., joined; in all but a portion of page 456 in Part II of which WHITE and REHNQUIST, JJ., joined; and in Part II of which BRENNAN, MARSHALL, and STEVENS, JJ., joined. WHITE, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, J., joined, post, p. 468 U. S. 467. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 468 U. S. 467.

1970_15

MR. JUSTICE BLACK announced the judgment of the Court and delivered an opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join.This is one of two cases now before us from two different States in which applicants have been denied admission to practice law solely because they refused to answer questions about their personal beliefs or their affiliations with organizations that advocate certain ideas about government. [Footnote 1] Sharp conflicts and close divisions have arisen in this Court concerning the power of Page 401 U. S. 3 States to refuse to permit applicants to practice law in cases where bar examiners have been suspicious about applicants' loyalties and their views on Communism and revolution. This has been an increasingly divisive and bitter issue for some years, especially since Senator Joseph McCarthy from Wisconsin stirred up anti-Communist feelings and fears by his "investigations" in the early 1950's. One applicant named Raphael Konigsberg was denied admission in California, and this Court reversed. Konigsberg v. State Bar, 353 U. S. 252 (1957). The State nevertheless denied him admission a second time, and this Court then affirmed by a 5-to-4 decision. 366 U. S. 366 U.S. 36 (1961). An applicant named Rudolph Schware was denied admission in New Mexico, and this Court reversed, with five Justices agreeing on one opinion, three Justices on another opinion, and one not participating. Schware v. Board of Bar Examiners, 353 U. S. 232 (1957). In another case, an applicant named George Anastaplo was denied admission in Illinois on grounds similar to those involved in Konigsberg and Schware, and the denial was affirmed by a 5-to-4 margin. In re Anastaplo, 366 U. S. 82 (1961). See also In re Summers, 325 U. S. 561 (1945). With sharp divisions in this Court, our docket and those of the Courts of Appeals have been filled for years with litigation involving inquisitions about beliefs and associations and refusals to let people practice law and hold public or even private jobs solely because public authorities have been suspicious of their ideas. [Footnote 2] Usually these denials of employment have not been based on any overt acts of misconduct or lawlessness, and the litigation has Page 401 U. S. 4 continued to raise serious questions of alleged violations of the First Amendment and other guarantees of the Bill of Rights. [Footnote 3]The foregoing cases and others contain thousands of pages of confusing formulas, refined reasonings, and puzzling holdings that touch on the same suspicions and fears about citizenship and loyalty. However we have concluded the best way to handle this case is to narrate its simple facts and then relate them to the 45 words that make up the First Amendment.These are the facts.The petitioner, Sara Baird, graduated from law school at Stanford University in California in 1967. So far as the record shows, there is not now and never has been a single mark against her moral character. She has taken the examination prescribed by Arizona, and the answer of the State admits that she satisfactorily passed it. Among the questions she answered was No. 25, which called on her to reveal all organizations with which she had been associated since she reached 16 years of age. [Footnote 4] This question she answered to the satisfaction of the Arizona Bar Committee. Consequently, there is no charge or intimation that Mrs. Baird has not listed the organizations to which she has belonged since becoming 16. In addition, however, she was asked to state whether she had ever been a member of the Communist Party or any organization "that advocates overthrow of the United States Government by force or Page 401 U. S. 5 violence." [Footnote 5] When she refused to answer this question, the Committee declined to process her application further or recommend her admission to the bar. [Footnote 6] The Arizona Supreme Court then denied her petition for an order to the Committee to show cause why she should not be admitted to practice law. We granted certiorari. 394 U.S. 957.In Arizona, it is perjury to answer the bar committee's questions falsely, and perjury is punishable as a felony. Ariz.Rev.Stat.Ann. § 13-561 (1956). In effect, this young lady was asked by the State to make a guess as to whether any organization to which she ever belonged "advocates overthrow of the United States Government by force or violence." There may well be provisions of the Federal Constitution other than the First Amendment that would protect an applicant to a state bar from being subjected to a question potentially so hazardous to her liberty. But whether or not there are other provisions that protect her, we think the First Amendment does so here. That Amendment, made applicable to the States by the Fourteenth, forbids any"law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble. . . ."Mr. Justice Roberts, in referring to the First Amendment's guarantee of freedom of religion, said:"Thus, the Amendment embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society."Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303-304 (1940). Page 401 U. S. 6 See also Schneider v. State, 308 U. S. 147, 308 U. S. 160-161 (1939); West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 642 (1943). And we have made it clear that:"This conjunction of liberties is not peculiar to religious activity and institutions alone. The First Amendment gives freedom of mind the same security as freedom of conscience."Thomas v. Collins, 323 U. S. 516, 323 U. S. 531 (1945). The protection of the First Amendment also extends to the right of association. As we said in Schneider v. Smith, 390 U. S. 17, 390 U. S. 25 (1968):"The First Amendment's ban against Congress 'abridging' freedom of speech, the right peaceably to assemble and to petition, and the 'associational freedom' . . . that goes with those rights create a preserve where the views of the individual are made inviolate."See also Shelton v. Tucker, 364 U. S. 479, 364 U. S. 485-487 (1960); Bates v. Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama, 357 U. S. 449 (1958).The First Amendment's protection of association prohibits a State from excluding a person from a profession or punishing him solely because he is a member of a particular political organization or because he holds certain beliefs. United States v. Robel, 389 U. S. 258, 389 U. S. 266 (1967); Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 607 (1967). Similarly, when a State attempts to make inquiries about a person's beliefs or associations, its power is limited by the First Amendment. Broad and sweeping state inquiries into these protected areas, as Arizona has engaged in here, discourage citizens from exercising rights protected by the Constitution. Shelton v. Tucker, supra; Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 (1963); Cf. Speiser v. Randall, 357 U. S. 513 (1958).When a State seeks to inquire about an individual's beliefs and associations, a heavy burden lies upon it Page 401 U. S. 7 to show that the inquiry is necessary to protect a legitimate state interest. Gibson v. Florida Legislative Investigation Committee, supra, at 372 U. S. 546. Of course, Arizona has a legitimate interest in determining whether petitioner has the qualities of character and the professional competence requisite to the practice of law. But, here, petitioner has already supplied the Committee with extensive personal and professional information to assist its determination. By her answers to questions other than No. 25, and her listing of former employers, law school professors, and other references, she has made available to the Committee the information relevant to her fitness to practice law. [Footnote 7] And whatever justification may be offered, a State may not inquire about a man's views or associations solely for the purpose of withholding a right or benefit because of what he believes.Much has been written about the application of the First Amendment to cases where penalties have been imposed on people because of their beliefs. Some of what has been written is reconcilable with what we have said here, and some of it is not. Without Page 401 U. S. 8 detailed reference to all prior cases, it is sufficient to say we hold that views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law. Clearly Arizona has engaged in such questioning here. [Footnote 8]The practice of law is not a matter of grace, but of right for one who is qualified by his learning and his moral character. See Schware v. Board of Bar Examiners, supra, and Ex parte Garland, 4 Wall. 333 (1867). This record is wholly barren of one word, sentence, or paragraph that tends to show this lady is not morally and professionally fit to serve honorably and well as a member of the legal profession. It was error not to process her application and not to admit her to the Arizona Bar. The judgment of the Arizona Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtBaird v. State Bar of Arizona, 401 U.S. 1 (1971)Baird v. State Bar of ArizonaNo. 15Argued December 9, 1969Reargued October 14, 1970Decided February 23, 1971401 U.S. 1SyllabusPetitioner, who had passed the Arizona written bar examination, listed all the organizations to which she belonged since age 16 on the Bar Committee questionnaire, but refused to answer the question (No. 27) whether she had ever been a member of the Communist Party or any organization "that advocates overthrow of the United States Government by force or violence." The committee declined to process her application further or recommend her admission to the bar. The Arizona Supreme Court denied her petition for an order to show cause why she should not be admitted to practice law.Held: The judgment of the Arizona Supreme Court is reversed and the case is remanded. Pp. 401 U. S. 5-10.Reversed and remanded.MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL concluded that views and beliefs are immune from bar committee inquisitions designed to lay a foundation for barring an applicant from the practice of law, which is a matter of right for one qualified by learning and moral character. Pp. 401 U. S. 5-8.(a) A State's power to inquire about a person's beliefs or associations is limited by the First Amendment, which prohibits a State from excluding a person from a profession solely because of membership in a political organization or because of his beliefs. Pp 401 U. S. 5-6. Page 401 U. S. 2(b) While Arizona has a legitimate interest in determining whether petitioner's character and professional competence qualify her to practice law, petitioner has supplied the Bar Committee with extensive personal and professional information to assist its determination. Pp. 401 U. S. 6-7.MR. JUSTICE STEWART concluded that Question 27 is constitutionally infirm under the First and Fourteenth Amendments, as it is not confined to knowing membership in any organization that advocates violent overthrow of the Government, and it is an inquiry into the proscribed area of political beliefs. Pp. 401 U. S. 9-10.BLACK, J., announced the Court's judgment and delivered an opinion, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, post, p. 401 U. S. 9. HARLAN, J., filed a dissenting opinion, post, p. 401 U. S. 34. WHITE, J., filed a dissenting opinion, post, p. 401 U. S. 10. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and HARLAN and WHITE, JJ., joined, post, p. 401 U. S. 11.

1993_93-644

J., filed a concurring opinion, post, p. 435. GINSBURG, J., filed a dissenting opinion, in which REHNQUIST, C. J., joined, post, p. 436.Andrew L. Frey argued the cause for petitioners. With him on the briefs were Kenneth S. Geller, Charles A. Rothfeld, Evan M. Tager, Thomas W Brown, Jeffrey R. Brooke, and Paul G. Cereghini.Laurence H. Tribe argued the cause for respondent.With him on the brief were William A. Gaylord, Kenneth J. Chesebro, Michael H. Gottesman, and Raymond F. Thomas. **Briefs of amici curiae urging reversal were filed for the American Council of Life Insurance et al. by Erwin N. Griswold, Patricia A. Dunn, Stephen J. Goodman, Richard E. Barnsback, Phillip E. Stano, and Patrick J. McNally; for the Equal Employment Advisory Council by Douglas S. McDowell and Kimberly L. Japinga; for the Product Liability Advisory Council, Inc., et al. by Malcolm E. Wheeler; for Snap-on Tools Corp. et al. by Gary M. Elden and Donald A. Vogelsang; and for the Washington Legal Foundation by Arvin Maskin, Steven Alan Reiss, Peter A. Antonucci, Daniel J. Popeo, and Paul D. Kamenar.Briefs of amici curiae urging affirmance were filed for the State of Hawaii et al. by Theodore R. Kulongoski, Attorney General of Oregon, Thomas A. Balmer, Deputy Attorney General, Virginia L. Linder, Solicitor General, and Rives Kistler, Assistant Attorney General, Robert A. Marks, Attorney General of Hawaii, Robert T. Stephan, Attorney General of Kansas, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, and Joseph P. Mazurek, Attorney General of Montana; for the Association of Trial Lawyers of America by Jeffrey Robert White, Cheryl Flax-Davidson, and Barry J. Nace; and for Trial Lawyers for Public Justice by Arthur H. Bryant, Leslie Brueckner, and Michael Rustad.Briefs of amici curiae were filed for CBS Inc. et al. by P. Cameron DeVore, Marshall J. Nelson, Douglas P. Jacobs, David C. Kohler, Devereaux Chatillon, Mark L. Tuft, Harold W Fuson, Jr., R. Bruce Rich, Kenneth M. Vittor, Slade R. Metcalf, John F. Sturm, Rene P. Milam, J. Laurent Scharff, Jane E. Kirtley, Bruce W Sanford, and Henry S. Hoberman; for Legal Historian Daniel R. Coquillette et al. by Arthur F. McEvoy III; and for the Oregon Trial Lawyers Association by Kathryn H. Clarke and Maureen Leonard.418JUSTICE STEVENS delivered the opinion of the Court.An amendment to the Oregon Constitution prohibits judicial review of the amount of punitive damages awarded by a jury "unless the court can affirmatively say there is no evidence to support the verdict." The question presented is whether that prohibition is consistent with the Due Process Clause of the Fourteenth Amendment. We hold that it is not.IPetitioner Honda Motor Co., Ltd., manufactured and sold the three-wheeled all-terrain vehicle that overturned while respondent was driving it, causing him severe and permanent injuries. Respondent brought suit alleging that petitioner knew or should have known that the vehicle had an inherently and unreasonably dangerous design. The jury found petitioner liable and awarded respondent $919,390.39 in compensatory damages and punitive damages of $5 million. The compensatory damages, however, were reduced by 20% to $735,512.31, because respondent's own negligence contributed to the accident. On appeal, relying on our then-recent decision in Pacific Mut. Life Ins. Co. v. Has lip, 499 U. S. 1 (1991), petitioner argued that the award of punitive damages violated the Due Process Clause of the Fourteenth Amendment, because the punitive damages were excessive and because Oregon courts lacked the power to correct excessive verdicts.The Oregon Court of Appeals affirmed, as did the Oregon Supreme Court. The latter court relied heavily on the fact that the Oregon statute governing the award of punitive damages in product liability actions and the jury instructions in this case 1 contain substantive criteria that provide1 The jury instructions, in relevant part, read: "'Punitive damages may be awarded to the plaintiff in addition to general damages to punish wrongdoers and to discourage wanton misconduct. In order for plaintiff to recover punitive damages against the defendant[s], the plaintiff must419at least as much guidance to the factfinders as the Alabama statute and jury instructions that we upheld in Haslip. The Oregon Supreme Court also noted that Oregon law provides an additional protection by requiring the plaintiff to prove entitlement to punitive damages by clear and convincing evidence rather than a mere preponderance. Recognizing that other state courts had interpreted Haslip as including a "clear ... constitutional mandate for meaningful judicial scrutiny of punitive damage awards," Adams v. Murakami, 54 Cal. 3d 105, 118, 813 P. 2d 1348, 1356 (1991); see also Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs., Inc., 88 Md. App. 672, 596 A. 2d 687 (1991), the court nevertheless declined to "interpret Haslip to hold that an award of punitive damages, to comport with the requirements of the Due Process Clause, always must be subject to a form of post-verdict or appellate review that includes the possibility of remittitur." 316 Ore. 263, 284, 851 P. 2d 1084, 1096 (1993). It also noted that trial and appellate courts were "not entirely powerless" because a judgment may be vacated if "there is no evidence to support the jury's decision," and because "appellate review is available to test the sufficiency of the jury instructions." Id., at 285, 851 P. 2d, at 1096-1097.prove by clear and convincing evidence that defendant[s have] shown wanton disregard for the health, safety, and welfare of others .... If you decide this issue against the defendant[s], you may award punitive damages, although you are not required to do so, because punitive damages are discretionary. In the exercise of that discretion, you shall consider evidence, if any, of the following: First, the likelihood at the time of the sale [of the three-wheeled vehicle] that serious harm would arise from defendants' misconduct. Number two, the degree of the defendants' awareness of that likelihood. Number three, the duration of the misconduct. Number four, the attitude and conduct of the defendant[s] upon notice of the alleged condition of the vehicle. Number five, the financial condition of the defendant[s]. And the amount of punitive damages may not exceed the sum of $5 million.''' 316 Ore. 263, 282, n. 11, 851 P. 2d 1084, 1095, n. 11 (1993).420We granted certiorari, 510 U. S. 1068 (1994), to consider whether Oregon's limited judicial review of the size of punitive damages awards is consistent with our decision in Has lip.IIOur recent cases have recognized that the Constitution imposes a substantive limit on the size of punitive damages awards. Pacific Mut. Life Ins. Co. v. Has lip, 499 U. S. 1 (1991); TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443 (1993). Although they fail to "draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable," id., at 458; Has lip, 499 U. S., at 18, a majority of the Justices agreed that the Due Process Clause imposes a limit on punitive damages awards. A plurality in TXO assented to the proposition that "grossly excessive" punitive damages would violate due process, 509 U. S., at 453-455, while JUSTICE O'CONNOR, who dissented because she favored more rigorous standards, noted that "[i]t is thus common ground that an award may be so excessive as to violate due process," id., at 480. In the case before us today we are not directly concerned with the character of the standard that will identify unconstitutionally excessive awards; rather, we are confronted with the question of what procedures are necessary to ensure that punitive damages are not imposed in an arbitrary manner. More specifically, the question is whether the Due Process Clause requires judicial review of the amount of punitive damages awards.The opinions in both Haslip and TXO strongly emphasized the importance of the procedural component of the Due Process Clause. In Has lip, the Court held that the common-law method of assessing punitive damages did not violate procedural due process. In so holding, the Court stressed the availability of both "meaningful and adequate review by the trial court" and subsequent appellate review. 499 U. S., at 20. Similarly, in TXO, the plurality opinion421found that the fact that the "award was reviewed and upheld by the trial judge" and unanimously affirmed on appeal gave rise "to a strong presumption of validity." 509 U. S., at 457. Concurring in the judgment, JUSTICE SCALIA (joined by JUSTICE THOMAS) considered it sufficient that traditional common-law procedures were followed. In particular, he noted that" 'procedural due process' requires judicial review of punitive damages awards for reasonableness." Id., at 471.All of those opinions suggest that our analysis in this case should focus on Oregon's departure from traditional procedures. We therefore first contrast the relevant commonlaw practice with Oregon's procedure, which that State's Supreme Court once described as "a system of trial by jury in which the judge is reduced to the status of a mere monitor." Van Lom v. Schneiderman, 187 Ore. 89, 113, 210 P. 2d 461, 471 (1949). We then examine the constitutional implications of Oregon's deviation from established common-law procedures.IIIJudicial review of the size of punitive damages awards has been a safeguard against excessive verdicts for as long as punitive damages have been awarded. One of the earliest reported cases involving exemplary damages, Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (C. P. 1763), arose out of King George Ill's attempt to punish the publishers of the allegedly seditious North Briton, No. 45. The King's agents arrested the plaintiff, a journeyman printer, in his home and detained him for six hours. Although the defendants treated the plaintiff rather well, feeding him "beef steakes and beer, so that he suffered very little or no damages," 2 Wils., at 205, 95 Eng. Rep., at 768, the jury awarded him £300, an enormous sum almost 300 times the plaintiff's weekly wage. The defendant's lawyer requested a new trial, arguing that the jury's award was excessive. Plain-422tiff's counsel, on the other hand, argued that "in cases of tort ... the court will never interpose in setting aside verdicts for excessive damages." Id., at 206, 95 Eng. Rep., at 768. While the court denied the motion for new trial, the Chief Justice explicitly rejected plaintiff's absolute rule against review of damages amounts. Instead, he noted that when the damages are "outrageous" and "all mankind at first blush must think so," a court may grant a new trial "for excessive damages." Id., at 207, 95 Eng. Rep., at 769. In accord with his view that the amount of an award was relevant to the motion for a new trial, the Chief Justice noted that "[u]pon the whole I am of opinion the damages are not excessive." Ibid.Subsequent English cases, while generally deferring to the jury's determination of damages, steadfastly upheld the court's power to order new trials solely on the basis that the damages were too high. Fabrigas v. Mostyn, 2 Black. W. 929, 96 Eng. Rep. 549 (C. P. 1773) (Damages "may be so monstrous and excessive, as to be in themselves an evidence of passion or partiality in the jury"); 2 Sharpe v. Brice, 2 Black. W. 942, 96 Eng. Rep. 557 (C. P. 1774) ("It has never been laid down, that the Court will not grant a new trial for excessive damages in any cases of tort"); Leith v. Pope, 2 Black. W. 1327, 1328, 96 Eng. Rep. 777, 778 (C. P. 1779) ("[I]n cases of tort the Court will not interpose on account of the largeness of damages, unless they are so flagrantly excessive as to afford an internal evidence of the prejudice and partial-2 As in many early cases, it is unclear whether this case specifically concerns punitive damages or merely ordinary compensatory damages. Since there is no suggestion that different standards of judicial review were applied for punitive and compensatory damages before the 20th century, no effort has been made to separate out the two classes of cases. See Brief for Legal Historians Daniel R. Coquillette et al. as Amici Curiae 2,3, 6-7, 15 (discussing together "punitive damages, personal injury, and other cases involving difficult-to-quantify damages").423ity of the jury"); Jones v. Sparrow, 5 T. R. 257, 101 Eng. Rep. 144 (K. B. 1793) (new trial granted for excessive damages); Goldsmith v. Lord Sefton, 3 Anst. 808, 145 Eng. Rep. 1046 (Exch. 1796) (same); Hewlett v. Cruchley, 5 Taunt. 277, 281, 128 Eng. Rep. 696, 698 (C. P. 1813) ("[I]t is now well acknowledged in all the Courts of Westminster-hall, that whether in actions for criminal conversation, malicious prosecutions, words, or any other matter, if the damages are clearly too large, the Courts will send the inquiry to another jury").Respondent calls to our attention the case of Beardmore v. Carrington, 2 Wils. 244, 95 Eng. Rep. 790 (C. P. 1764), in which the court asserted that "there is not one single case, (that is law), in all the books to be found, where the court has granted a new trial for excessive damages in actions for torts." Id., at 249, 95 Eng. Rep., at 793. Respondent would infer from that statement that 18th-century common law did not provide for judicial review of damages. Respondent's argument overlooks several crucial facts. First, the Beardmore case antedates all but one of the cases cited in the previous paragraph. Even if respondent's interpretation of the case were correct, it would be an interpretation the English courts rejected soon thereafter. Second, Beardmore itself cites at least one case that it concedes granted a new trial for excessive damages, Chambers v. Robinson, 2 Str. 691, 93 Eng. Rep. 787 (K. B. 1726), although it characterizes the case as wrongly decided. Third, to say that "there is not one single case ... in all the books" is to say very little, because then, much more so than now, only a small proportion of decided cases was reported. For example, for 1764, the year Beardmore was decided, only 16 Common Pleas cases are recorded in the standard reporter. 2 Wils. 208-257, 95 Eng. Rep. 769-797. Finally, the inference respondent would draw, that 18th-century English common law did not permit a judge to order new trials for excessive damages, is explicitly rejected by Beardmore itself,424which cautioned against that very inference: "We desired to be understood that this court does not say, or lay down any rule that there can never happen a case of such excessive damages in tort where the court may not grant a new trial." 2 Wils., at 250, 95 Eng. Rep., at 793.Common-law courts in the United States followed their English predecessors in providing judicial review of the size of damages awards. They too emphasized the deference ordinarily afforded jury verdicts, but they recognized that juries sometimes awarded damages so high as to require correction. Thus, in 1822, Justice Story, sitting as Circuit Justice, ordered a new trial unless the plaintiff agreed to a reduction in his damages.3 In explaining his ruling, he noted:"As to the question of excessive damages, I agree, that the court may grant a new trial for excessive damages .... It is indeed an exercise of discretion full of delicacy and difficulty. But if it should clearly appear that the jury have committed a gross error, or have acted from improper motives, or have given damages excessive in relation to the person or the injury, it is as much the duty of the court to interfere, to prevent the wrong, as in any other case." Blunt v. Little, 3 F. Cas. 760, 761-762 (No. 1,578) (CC Mass. 1822).See also Whipple v. Cumberland Mfg. Co., 29 F. Cas. 934, 937-938 (No. 17, 516) (CC Me. 1843).3 While Justice Story's grant of a new trial was clearly in accord with established common-law procedure, the remittitur-withdrawal of new trial if the plaintiff agreed to a specific reduction of damages-may have been an innovation. See Dimick v. Schiedt, 293 U. S. 474, 482-485 (1935). On the other hand, remittitur may have a better historical pedigree than previously thought. See King v. Watson, 2 T. R. 199-200, 100 Eng. Rep. 108 (K. B. 1788) ("[O]n a motion in the Common Pleas to set aside the verdict for excessive damages ... the Court recommended a compromise, and on Hurry's agreeing to accept 1500 [pounds] they discharged the rule").425In the 19th century, both before and after the ratification of the Fourteenth Amendment, many American courts reviewed damages for "partiality" or "passion and prejudice." Nevertheless, because of the difficulty of probing juror reasoning, passion and prejudice review was, in fact, review of the amount of awards. Judges would infer passion, prejudice, or partiality from the size of the award.4 Coffin v. Coffin, 4 Mass. 1, 41 (1808) (In cases of personal injury, "a verdict may be set aside for excessive damages" when "from the exorbitancy of them the court must conclude that the jury acted from passion, partiality, or corruption"); Taylor v. Giger, 3 Ky. 586, 587 (1808) ("In actions of tort ... a new trial ought not to be granted for excessiveness of damages, unless the damages found are so enormous as to shew that the jury were under some improper influence, or were led astray by the violence of prejudice or passion"); McConnell v. Hampton, 12 Johns. 234, 235 (N. Y. 1815) (granting new trial for excessive damages and noting: "That Courts have a legal right to grant new trials, for excessive damages in actions for torts, is no where denied ... "); Belknap v. Boston & Maine R. Co., 49 N. H. 358, 374 (1870) (setting aside both compensatory and punitive damages, because "[w]e think it evident that the jury were affected by some partiality or prejudice").Nineteenth-century treatises similarly recognized judges' authority to award new trials on the basis of the size of damages awards. 1 D. Graham, A Treatise on the Law of New Trials 442 (2d ed. 1855) ("[E]ven in personal torts, where the jury find outrageous damages, clearly evincing partiality, prejudice and passion, the court will interfere for the relief4 This aspect of passion and prejudice review has been recognized in many opinions of this Court. Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 272 (1989); Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1,21, n. 10 (1991); id., at 27 (SCALIA, J., concurring); TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 467 (1993) (KENNEDY, J., concurring); id., at 476-478 (O'CONNOR, J., dissenting).426of the defendant, and order a new trial"); T. Sedgwick, A Treatise on the Measure of Damages 707 (5th ed. 1869) ("The court again holds itself at liberty to set aside verdicts and grant new trials ... whenever the damages are so excessive as to create the belief that the jury have been misled either by passion, prejudice, or ignorance"); 3 J. Sutherland, A Treatise on the Law of Damages 469 (1883) (When punitive damages are submitted to the jury, "the amount which they may think proper to allow will be accepted by the court, unless so exorbitant as to indicate that they have been influenced by passion, prejudice or a perverted judgment").Modern practice is consistent with these earlier authorities. In the federal courts and in every State, except Oregon, judges review the size of damages awards. See Dagnello v. Long Island R. Co., 289 F.2d 797, 799-800, n. 1, (CA2 1961) (citing cases from all 50 States except Alaska, Maryland, and Oregon); Nome v. Ailak, 570 P. 2d 162, 173174 (Alaska 1977); Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs., Inc., 88 Md. App., at 716-722, 596 A. 2d, at 709-711, cert. denied, 605 A. 2d 137 (Md. 1992); Texaco, Inc. v. Pennzoil, Co., 729 S. W. 2d 768 (Tex. App. 1987); Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981); Draper, Excessiveness or Inadequacy of Punitive Damages Awarded in Personal Injury or Death Cases, 12 A. L. R. 5th 195 (1993); Schnapper, Judges Against JuriesAppellate Review of Federal Civil Jury Verdicts, 1989 Wis. L. Rev. 237.IVThere is a dramatic difference between the judicial review of punitive damages awards under the common law and the scope of review available in Oregon. An Oregon trial judge, or an Oregon appellate court, may order a new trial if the jury was not properly instructed, if error occurred during the trial, or if there is no evidence to support any punitive damages at all. But if the defendant's only basis for relief is the amount of punitive damages the jury awarded, Oregon427provides no procedure for reducing or setting aside that award. This has been the law in Oregon at least since 1949 when the State Supreme Court announced its opinion in Van Lom v. Schneiderman, 187 Ore. 89, 210 P. 2d 461 (1949), definitively construing the 1910 amendment to the Oregon Constitution.5In that case the court held that it had no power to reduce or set aside an award of both compensatory and punitive damages that was admittedly excessive.6 It recognized that the constitutional amendment placing a limitation on its power was a departure from the traditional common-law approach.7 That opinion's characterization of Oregon's "lonely eminence" in this regard, id., at 113, 210 P. 2d, at 471, is still an accurate portrayal of its unique position. Every other State in the Union affords postverdict judicial review of the5 The amended Article VII, § 3, of the Oregon Constitution provides: "In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this State, unless the court can affirmatively say there is no evidence to support the verdict."6 "The court is of the opinion that the verdict of $10,000.00 is excessive.Some members of the court think that only the award of punitive damages is excessive; others that both the awards of compensatory and punitive damages are excessive. Since a majority are of the opinion that this court has no power to disturb the verdict, it is not deemed necessary to discuss the grounds for these divergent views." Van Lom v. Schneiderman, 187 Ore., at 93, 210 P. 2d, at 462 (1949).7 "The guaranty of the right to jury trial in suits at common law, incorporated in the Bill of Rights as one of the first ten amendments of the Constitution of the United States, was interpreted by the Supreme Court of the United States to refer to jury trial as it had been theretofore known in England; and so it is that the federal judges, like the English judges, have always exercised the prerogative of granting a new trial when the verdict was clearly against the weight of the evidence, whether it be because excessive damages were awarded or for any other reason. The state courts were conceded similar powers .... [U]p to 1910, when the people adopted Art. VII, § 3, of our Constitution, there was no state in the union, so far as we are advised, where this method of control of the jury did not prevail." Id., at 112-113,210 P. 2d, at 471.428amount of a punitive damages award, see supra, at 426, and subsequent decisions have reaffirmed Oregon judges' lack of authority to order new trials or other relief to remedy excessive damages. Fowler v. Courtemanche, 202 Ore. 413, 448, 274 P. 2d 258, 275 (1954) ("If this court were authorized to exercise its common law powers, we would unhesitatingly hold that the award of $35,000 as punitive damages was excessive ... "); Tenold v. Weyerhaeuser Co., 127 Ore. App. 511, 873 P. 2d 413 (1994) (Oregon court cannot examine jury award to ensure compliance with $500,000 statutory limit on noneconomic damages).Respondent argues that Oregon's procedures do not deviate from common-law practice, because Oregon judges have the power to examine the size of the award to determine whether the jury was influenced by passion and prejudice. This is simply incorrect. The earliest Oregon cases interpreting the 1910 amendment squarely held that Oregon courts lack precisely that power. Timmins v. Hale, 122 Ore. 24, 43-44, 256 P. 770, 776 (1927); McCulley v. Homestead Bakery, Inc., 141 Ore. 460, 465-466, 18 P. 2d 226, 228 (1933). Although dicta in later cases have suggested that the issue might eventually be revisited, see Van Lom, 187 Ore., at 106, 210 P. 2d, at 468, the earlier holdings remain Oregon law. No Oregon court for more than half a century has inferred passion and prejudice from the size of a damages award, and no court in more than a decade has even hinted that courts might possess the power to do SO.8 Finally, if Oregon courts8 The last reported decision to suggest that a new trial might be ordered because the size of the award suggested passion and prejudice was Trenery v. Score, 45 Ore. App. 611, 615, 609 P. 2d 388, 389 (1980) (noting that "[i]t is doubtful" that passion and prejudice review continues to be available); see also Foley v. Pittenger, 264 Ore. 310, 503 P. 2d 476 (1972). More recent decisions suggest that the type of passion and prejudice review envisioned by the common law and former Ore. Rev. Stat. § 17.610 (repealed by 1979 Ore. Laws, ch. 284, § 199) is no longer available. See Tenold v. Weyerhaeuser Co., 127 Ore. App. 511, 873 P. 2d 413 (1994).429could evaluate the excessiveness of punitive damages awards through passion and prejudice review, the Oregon Supreme Court would have mentioned that power in this very case. Petitioners argued that Oregon procedures were unconstitutional precisely because they failed to provide judicial review of the size of punitive damages awards. The Oregon Supreme Court responded by rejecting the idea that judicial review of the size of punitive damages awards was required by Has lip. 316 Ore., at 263, 851 P. 2d, at 1084. As the court noted, two state appellate courts, including the California Supreme Court, had reached the opposite conclusion. Id., at 284, n. 13, 851 P. 2d, at 1096, n. 13. If, as respondent claims, Oregon law provides passion and prejudice review of excessive verdicts, the Oregon Supreme Court would have had a more obvious response to petitioners' argument.Respondent also argues that Oregon provides adequate review, because the trial judge can overturn a punitive damages award if there is no substantial evidence to support an award of punitive damages. See Fowler v. Courtemanche, 202 Ore., at 448-449, 274 P. 2d, at 275. This argument is unconvincing, because the review provided by Oregon courts ensures only that there is evidence to support some punitive damages, not that there is evidence to support the amount actually awarded. While Oregon's judicial review ensures that punitive damages are not awarded against defendants entirely innocent of conduct warranting exemplary damages, Oregon, unlike the common law, provides no assurance that those whose conduct is sanctionable by punitive damages are not subjected to punitive damages of arbitrary amounts. What we are concerned with is the possibility that a culpable defendant may be unjustly punished; evidence of culpability warranting some punishment is not a substitute for evidence providing at least a rational basis for the particular deprivation of property imposed by the State to deter future wrongdoing.430vOregon's abrogation of a well-established common-law protection against arbitrary deprivations of property raises a presumption that its procedures violate the Due Process Clause. As this Court has stated from its first due process cases, traditional practice provides a touchstone for constitutional analysis. Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856); Tumey v. Ohio, 273 U. S. 510 (1927); Brown v. Mississippi, 297 U. S. 278 (1936); In re Winship, 397 U. S. 358, 361 (1970); Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604 (1990); Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1 (1991). Because the basic procedural protections of the common law have been regarded as so fundamental, very few cases have arisen in which a party has complained of their denial. In fact, most of our due process decisions involve arguments that traditional procedures provide too little protection and that additional safeguards are necessary to ensure compliance with the Constitution. Ownbey v. Morgan, 256 U. S. 94 (1921); Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604 (1990); Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1 (1991).Nevertheless, there are a handful of cases in which a party has been deprived of liberty or property without the safeguards of common-law procedure. Hurtado v. California, 110 U. S. 516 (1884); Tumey v. Ohio, 273 U. S. 510 (1927); Brown v. Mississippi, 297 U. S. 278 (1936); In re Oliver, 333 U. S. 257 (1948); In re Winship, 397 U. S., at 361. When the absent procedures would have provided protection against arbitrary and inaccurate adjudication, this Court has not hesitated to find the proceedings violative of due process. Tumey v. Ohio, 273 U. S. 510 (1927); Brown v. Mississippi, 297 U. S. 278 (1936); In re Oliver, 333 U. S. 257 (1948); In re Winship, 397 U. S., at 361. Of course, not all deviations from established procedures result in constitutional infirmity. As the Court noted in Hurtado, to hold all procedural431change unconstitutional "would be to deny every quality of the law but its age, and to render it incapable of progress or improvement." 110 U. S., at 529. A review of the cases, however, suggests that the case before us is unlike those in which abrogations of common-law procedures have been upheld.In Hurtado, for example, examination by a neutral magistrate provided criminal defendants with nearly the same protection as the abrogated common-law grand jury procedure. Id., at 538. Oregon, by contrast, has provided no similar substitute for the protection provided by judicial review of the amount awarded by the jury in punitive damages. Similarly, in International Shoe Co. v. Washington, 326 U. S. 310 (1945), this Court upheld the extension of state-court jurisdiction over persons not physically present, in spite of contrary well-established prior practice. That change, however, was necessitated by the growth of a new business entity, the corporation, whose ability to conduct business without physical presence had created new problems not envisioned by rules developed in another era. See Burnham, 495 U. S., at 617. In addition, the dramatic improvements in communication and transportation made litigation in a distant forum less onerous. No similar social changes suggest the need for Oregon's abrogation of judicial review, nor do improvements in technology render unchecked punitive damages any less onerous. If anything, the rise of large, interstate and multinational corporations has aggravated the problem of arbitrary awards and potentially biased juries.99 Respondent cites as support for his argument Chicago, R. I. & P. R.Co. v. Cole, 251 U. S. 54, 55 (1919) (Holmes, J.). In that case, the Court upheld a provision of the Oklahoma Constitution providing that "'the defense of contributory negligence ... shall ... be left to the jury.'" Chicago, R. I. provides little support for respondent's case. Justice Holmes' reasoning relied on the fact that a State could completely abolish the defense of contributory negligence. This case, however, is different,432Punitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences. Judicial review of the amount awarded was one of the few procedural safeguards which the common law provided against that danger. Oregon has removed that safeguard without providing any substitute procedure and without any indication that the danger of arbitrary awards has in any way subsided over time. For these reasons, we hold that Oregon's denial of judicial review of the size of punitive damages awards violates the Due Process Clause of the Fourteenth Amendment.1oVIRespondent argues that Oregon has provided other safeguards against arbitrary awards and that, in any event, the exercise of this unreviewable power by the jury is consistent with the jury's historic role in our judicial system.Respondent points to four safeguards provided in the Oregon courts: the limitation of punitive damages to the amount specified in the complaint, the clear and convincing standard of proof, preverdict determination of maximum allowable punitive damages, and detailed jury instructions. The first,because the TXO and Haslip opinions establish that States cannot abolish limits on the award of punitive damages.10 This case does not pose the more difficult question of what standard of review is constitutionally required. Although courts adopting a more deferential approach use different verbal formulations, there may not be much practical difference between review that focuses on "passion and prejudice," "gross excessiveness," or whether the verdict was "against the great weight of the evidence." All of these may be rough equivalents of the standard this Court articulated in Jackson v. Virginia, 443 U. S. 307,324 (1979) (whether "no rational trier of fact could have" reached the same verdict).433limitation of punitive damages to the amount specified, is hardly a constraint at all, because there is no limit to the amount the plaintiff can request, and it is unclear whether an award exceeding the amount requested could be set aside. See Tenold v. Weyerhaeuser Co., 127 Ore. App. 511, 873 P. 2d 413 (1994) (Oregon Constitution bars court from examining jury award to ensure compliance with $500,000 statutory limit on noneconomic damages). The second safeguard, the clear and convincing standard of proof, is an important check against unwarranted imposition of punitive damages, but, like the "no substantial evidence" review discussed supra, at 429, it provides no assurance that those whose conduct is sanctionable by punitive damages are not subjected to punitive damages of arbitrary amounts. Regarding the third purported constraint, respondent cites no cases to support the idea that Oregon courts do or can set maximum punitive damages awards in advance of the verdict. Nor are we aware of any court which implements that procedure. Respondent's final safeguard, proper jury instruction, is a wellestablished and, of course, important check against excessive awards. The problem that concerns us, however, is the possibility that a jury will not follow those instructions and may return a lawless, biased, or arbitrary verdict.ll11 Respondent also argues that empirical evidence supports the effectiveness of these safeguards. It points to the analysis of an amicus showing that the average punitive damages award in a products liability case in Oregon is less than the national average. Brief for Trial Lawyers for Public Justice as Amicus Curiae. While we welcome respondent's introduction of empirical evidence on the effectiveness of Oregon's legal rules, its statistics are undermined by the fact that the Oregon average is computed from only two punitive damages awards. It is well known that one cannot draw valid statistical inferences from such a small number of observations.Empirical evidence, in fact, supports the importance of judicial review of the size of punitive damages awards. The most exhaustive study of punitive damages establishes that over half of punitive damages awards were appealed, and that more than half of those appealed resulted in reductions or reversals of the punitive damages. In over 10% of the cases434In support of his argument that there is a historic basis for making the jury the final arbiter of the amount of punitive damages, respondent calls our attention to early civil and criminal cases in which the jury was allowed to judge the law as well as the facts. See Johnson v. Louisiana, 406 U. S. 356, 374, n. 11 (1972) (Powell, J., concurring). As we have already explained, in civil cases, the jury's discretion to determine the amount of damages was constrained by judicial review.12 The criminal cases do establish-as does our practice today-that a jury's arbitrary decision to acquit a defendant charged with a crime is completely unreviewable. There is, however, a vast difference between arbitrary grants of freedom and arbitrary deprivations of liberty or property. The Due Process Clause has nothing to say about the former, but its whole purpose is to prevent the latter. A decision to punish a tortfeasor by means of an exaction ofappealed, the judge found the damages to be excessive. Rustad, In Defense of Punitive Damages in Products Liability: Testing Tort Anecdotes with Empirical Data, 78 Iowa L. Rev. 1, 57 (1992). The above statistics understate the importance of judicial review, because they consider only appellate review, rather than review by the trial court, which may be even more significant, and because they ignore the fact that plaintiffs often settle for less than the amount awarded because they fear appellate reduction of damages. See ibid.12Judicial deference to jury verdicts may have been stronger in 18thcentury America than in England, and judges' power to order new trials for excessive damages more contested. See Nelson, The EighteenthCentury Background of John Marshall's Constitutional Jurisprudence, 76 Mich. L. Rev. 893, 904-917 (1978); M. Horwitz, The Transformation of American Law, 1780-1860, p. 142 (1977). Nevertheless, because this case concerns the Due Process Clause of the Fourteenth Amendment, 19thcentury American practice is the "crucial time for present purposes." Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 611 (1990). As demonstrated supra, at 424-426, by the time the Fourteenth Amendment was ratified in 1868, the power of judges to order new trials for excessive damages was well established in American courts. In addition, the idea that jurors can find law as well as fact is not inconsistent with judicial review for excessive damages. See Coffin v. Coffin, 4 Mass. 1, 25, 41 (1808).435exemplary damages is an exercise of state power that must comply with the Due Process Clause of the Fourteenth Amendment. The common-law practice, the procedures applied by every other State, the strong presumption favoring judicial review that we have applied in other areas of the law, and elementary considerations of justice all support the conclusion that such a decision should not be committed to the unreviewable discretion of a jury.The judgment is reversed, and the case is remanded to the Oregon Supreme Court for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1993SyllabusHONDA MOTOR CO., LTD., ET AL. v. OBERGCERTIORARI TO THE SUPREME COURT OF OREGON No. 93-644. Argued April 20, 1994-Decided June 24,1994After finding petitioner Honda Motor Co., Ltd., liable for injuries respondent Oberg received while driving a three-wheeled all-terrain vehicle manufactured and sold by Honda, an Oregon jury awarded Oberg $5 million in punitive damages, over five times the amount of his compensatory damages award. In affirming, both the State Court of Appeals and the State Supreme Court rejected Honda's argument that the punitive damages award violated due process because it was excessive and because Oregon courts have no power to correct excessive verdicts under a 1910 amendment to the State Constitution, which prohibits judicial review of the amount of punitive damages awarded by a jury "unless the court can affirmatively say there is no evidence to support the verdict." The latter court relied heavily on the fact that the State's product liability punitive damages statute and the jury instructions in this case provided at least as much guidance as those upheld in Pacific Mut. Life Ins. Co. v. Has lip, 499 U. S. 1. The court also declined to interpret Haslip to hold that due process requires the amount of a punitive damages award to be subject to postverdict or appellate review, and noted that Oregon courts are not powerless because they may vacate a judgment if there is no evidence supporting the jury's decision, and because appellate review is available to test the sufficiency of jury instructions.Held: Oregon's denial of review of the size of punitive damages awards violates the Fourteenth Amendment's Due Process Clause. Pp. 420-435.(a) The Constitution imposes a substantive limit on the size of punitive damages awards. Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1; TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443. The opinions in these cases strongly emphasized the importance of the procedural component of the Due Process Clause, and suggest that the analysis here should focus on Oregon's departure from traditional procedures. Pp.420-421.(b) Judicial review of the size of punitive damages awards was a safeguard against excessive awards under the common law, see, e. g., Blunt v. Little, 3 F. Cas. 760, 761-762, and in modern practice in the federal courts and every State, except Oregon, judges review the size of such awards. See, e. g., Dagnello v. Long Island R. Co., 289 F.2d 797,799800, n. 1. Pp. 421-426.416Syllabus(c) There is a dramatic difference between judicial review under the common law and the scope of review available in Oregon. At least since the State Supreme Court definitively construed the 1910 amendment in Van Lom v. Schneiderman, 187 Ore. 89, 210 P. 2d 461, Oregon law has provided no procedure for reducing or setting aside a punitive damages award where the only basis for relief is the amount awarded. No Oregon court for more than half a century has inferred passion or prejudice from the size of a damages award, and no court in more than a decade has even hinted that it might possess the power to do so. If courts had such power, the State Supreme Court would have mentioned it in responding to Honda's arguments in this very case. The review that is provided ensures only that there is evidence to support some punitive damages, not that the evidence supports the amount actually awarded, thus leaving the possibility that a guilty defendant may be unjustly punished. Pp. 426-429.(d) This Court has not hesitated to find proceedings violative of due process where a party has been deprived of a well-established commonlaw protection against arbitrary and inaccurate adjudication. See, e. g., Tumey v. Ohio, 273 U. S. 510. Punitive damages pose an acute danger of arbitrary deprivation of property, since jury instructions typically leave the jury with wide discretion in choosing amounts and since evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses. Oregon has removed one of the few procedural safeguards which the common law provided against that danger without providing any substitute procedure and without any indication that the danger has in any way subsided over time. Hurtado v. California, 110 U. S. 516, 538; International Shoe Co. v. Washington, 326 U. S. 310, distinguished. Pp. 430-432.(e) The safeguards that Oberg claims Oregon has provided-the limitation of punitive damages to the amount specified in the complaint, the clear and convincing standard of proof, preverdict determination of maximum allowable punitive damages, and detailed jury instructionsdo not adequately safeguard against arbitrary awards. Nor does the fact that a jury's arbitrary decision to acquit a defendant charged with a crime is unreviewable offer a historic basis for such discretion in civil cases. The Due Process Clause says nothing about arbitrary grants of freedom, but its whole purpose is to prevent arbitrary deprivations of liberty or property. Pp. 432-435.316 Ore. 263, 851 P. 2d 1084, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BLACKMUN, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. SCALIA,417Full Text of Opinion

1986_86-511

JUSTICE POWELL delivered the opinion of the Court.The question in this case is whether a dominant shareholder who voluntarily surrenders a portion of his shares to the corporation, but retains control, may immediately deduct from taxable income his basis in the surrendered shares.Respondents Peter and Karla Fink were the principal shareholders of Travco Corporation, a Michigan manufacturer of motor homes. Travco had one class of common stock outstanding, and no preferred stock. Mr. Fink owned 52.2 percent, and Mrs. Fink 20.3 percent, of the outstanding Page 483 U. S. 91 shares. [Footnote 1] Travco urgently needed new capital as a result of financial difficulties it encountered in the mid-1970's. The Finks voluntarily surrendered some of their shares to Travco in an effort to "increase the attractiveness of the corporation to outside investors." Brief for Respondents 3. Mr. Fink surrendered 116,146 shares in December, 1976; Mrs. Fink surrendered 80,000 shares in January, 1977. As a result, the Finks' combined percentage ownership of Travco was reduced from 72.5 percent to 68.5 percent. The Finks received no consideration for the surrendered shares, and no other shareholder surrendered any stock. The effort to attract new investors was unsuccessful, and the corporation eventually was liquidated.On their 1976 and 1977 joint federal income tax returns, the Finks claimed ordinary loss deductions totaling $389,040, the full amount of their adjusted basis in the surrendered shares. [Footnote 2] The Commissioner of Internal Revenue disallowed the deductions. He concluded that the stock surrendered was a contribution to the corporation's capital. Accordingly, the Commissioner determined that the surrender resulted in no immediate tax consequences, and that the Finks' basis in the surrendered shares should be added to the basis of their remaining shares of Travco stock.In an unpublished opinion, the Tax Court sustained the Commissioner's determination for the reasons stated in Frantz v. Commissioner, 83 T.C. 162, 174-182 (1984), aff'd, 784 F.2d 119 (CA2 1986), cert. pending, No. 86-11. In Frantz, the Tax Court held that a stockholder's non-pro rata surrender of shares to the corporation does not produce an Page 483 U. S. 92 immediate loss. The court reasoned that"[t]his conclusion . . . necessarily follows from a recognition of the purpose of the transfer, that is, to bolster the financial position of [the corporation] and, hence, to protect and make more valuable [the stockholder's] retained shares."83 T.C. at 181. Because the purpose of the shareholder's surrender is "to decrease or avoid a loss on his overall investment," the Tax Court in Frantz was "unable to conclude that [he] sustained a loss at the time of the transaction." Ibid."Whether [the shareholder] would sustain a loss, and if so, the amount thereof, could only be determined when he subsequently disposed of the stock that the surrender was intended to protect and make more valuable."Ibid. The Tax Court recognized that it had sustained the taxpayer's position in a series of prior cases. [Footnote 3] Id. at 174-175. But it concluded that these Page 483 U. S. 93 decisions were incorrect, in part because they "encourage[d] a conversion of eventual capital losses into immediate ordinary losses." Id. at 182. [Footnote 4]In this case, a divided panel of the Court of Appeals for the Sixth Circuit reversed the Tax Court. 789 F.2d 427 (1986). The court concluded that the proper tax treatment of this type of stock surrender turns on the choice between "unitary" and "fragmented" views of stock ownership. Under the "fragmented view," "each share of stock is considered a separate investment," and gain or loss is computed separately on the sale or other disposition of each share. Id. at 429. According to the "unitary view," "the stockholder's entire investment is viewed as a single indivisible property unit,'" ibid. (citation omitted), and a sale or disposition of some of the stockholder's shares only produces "an ascertainable gain or loss when the stockholder has disposed of his remaining shares." Id. at 432. The court observed that both it and the Tax Court generally had adhered to the fragmented view, and concluded that "the facts of the instant case [do not] present sufficient justification for abandoning" it. Id. at 431. It therefore held that the Finks were entitled to deduct their basis in the surrendered shares immediately as an ordinary loss, except to the extent that the surrender had increased the value of their remaining shares. The Court of Appeals remanded the case to the Tax Court for a determination of the increase, if any, in the value of the Finks' remaining shares that was attributable to the surrender.Judge Joiner dissented. Because the taxpayers'"sole motivation in disposing of certain shares is to benefit the other shares they hold[,] . . . [v]iewing the surrender of each Page 483 U. S. 94 share as the termination of an individual investment ignores the very reason for the surrender."Id. at 435. He concluded:"Particularly in cases such as this, where the diminution in the shareholder's corporate control and equity interest is so minute as to be illusory, the stock surrender should be regarded as a contribution to capital."Ibid.We granted certiorari to resolve a conflict among the Circuits, [Footnote 5] 479 U.S. 960 (1986), and now reverse.IIAIt is settled that a shareholder's voluntary contribution to the capital of the corporation has no immediate tax consequences. 26 U.S.C. § 263; 26 CFR § 1.263(a)-2(f) (1986). Instead, the shareholder is entitled to increase the basis of his shares by the amount of his basis in the property transferred to the corporation. See 26 U.S.C. § 1016(a)(1). When the shareholder later disposes of his shares, his contribution is reflected as a smaller taxable gain or a larger deductible loss. This rule applies not only to transfers of cash or tangible property, but also to a shareholder's forgiveness of a debt owed to him by the corporation. 26 CFR § 1.6112(a) (1986). Such transfers are treated as contributions to capital, even if the other shareholders make proportionately smaller contributions, or no contribution at all. See, e.g., Sackstein v. Commissioner, 14 T.C. 566, 569 (1950). The rules governing contributions to capital reflect the general principle that a shareholder may not claim an immediate loss for outlays made to benefit the corporation. Deputy v. Du Pont, 308 U. S. 488 (1940); Eskimo Pie Corp. v. Commissioner, 4 T.C. 669, 676 (1945), aff'd, 153 F.2d 301 (CA3 1946). We must decide whether this principle also applies to Page 483 U. S. 95 a controlling shareholder's non-pro rata surrender of a portion of his shares. [Footnote 6]BThe Finks contend that they sustained an immediate loss upon surrendering some of their shares to the corporation. By parting with the shares, they gave up an ownership interest entitling them to future dividends, future capital appreciation, assets in the event of liquidation, and voting rights. [Footnote 7] Therefore, the Finks contend, they are entitled to an immediate deduction. See 26 U.S.C. §§ 165(a) and (c)(2). In addition, the Finks argue that any non-pro rata stock transaction "give[s] rise to immediate tax results." Brief for Respondents 13. For example, a non-pro rata stock dividend produces income because it increases the recipient's proportionate ownership of the corporation. Koshland v. Helvering, 298 U. S. 441, 298 U. S. 445 (1936). [Footnote 8] By analogy, the Finks argue that a non-pro rata surrender of shares should be recognized as an immediate loss, because it reduces the surrendering shareholder's proportionate ownership.Finally, the Finks contend that their stock surrenders were not contributions to the corporation's capital. They note that a typical contribution to capital, unlike a non-pro rata stock surrender, has no effect on the contributing shareholder's proportionate interest in the corporation. Moreover, the Finks argue, a contribution of cash or other property increases the net worth of the corporation. For example, a shareholder's Page 483 U. S. 96 forgiveness of a debt owed to him by the corporation decreases the corporation's liabilities. In contrast, when a shareholder surrenders shares of the corporation's own stock, the corporation's net worth is unchanged. This is because the corporation cannot itself exercise the right to vote, receive dividends, or receive a share of assets in the event of liquidation. G. Johnson & J. Gentry, Finney and Miller's Principles of Accounting 538 (7th ed.1974). [Footnote 9]IIIA shareholder who surrenders a portion of his shares to the corporation has parted with an asset, but that alone does not entitle him to an immediate deduction. Indeed, if the shareholder owns less than 100 percent of the corporation's shares, any non-pro rata contribution to the corporation's capital will reduce the net worth of the contributing shareholder. [Footnote 10] A shareholder who surrenders stock thus is similar to one who forgives or surrenders a debt owed to him by the corporation; the latter gives up interest, principal, and also potential voting power in the event of insolvency or bankruptcy. But, as stated above, such forgiveness of corporate debt is treated as a contribution to capital, rather than a current deduction. Supra, at 94. The Finks' voluntary surrender of shares, like a shareholder's voluntary forgiveness of debt owed by the corporation, closely resembles an investment or contribution Page 483 U. S. 97 to capital. See B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders § 3.14, p. 3-59 (4th ed.1979) ("If the contribution is voluntary, it does not produce gain or loss to the shareholder"). We find the similarity convincing in this case.The fact that a stock surrender is not recorded as a contribution to capital on the corporation's balance sheet does not compel a different result. Shareholders who forgive a debt owed by the corporation or pay a corporate expense also are denied an immediate deduction, even though neither of these transactions is a contribution to capital in the accounting sense. [Footnote 11] Nor are we persuaded by the fact that a stock surrender, unlike a typical contribution to capital, reduces the shareholder's proportionate interest in the corporation. This Court has never held that every change in a shareholder's percentage ownership has immediate tax consequences. Of course, a shareholder's receipt of property from the corporation generally is a taxable event. See 26 U.S.C. §§ 301, 316. In contrast, a shareholder's transfer of property to the corporation usually has no immediate tax consequences. § 263.The Finks concede that the purpose of their stock surrender was to protect or increase the value of their investment in the corporation. Brief for Respondents 3. [Footnote 12] They hoped to encourage new investors to provide needed capital and, in the long run, recover the value of the surrendered shares through increased dividends or appreciation in the value of their remaining shares. If the surrender had achieved its purpose, the Finks would not have suffered an economic loss. See Page 483 U. S. 98 Johnson, Tax Models for Nonprorata Shareholder Contributions, 3 Va.Tax.Rev. 81, 104-108 (1983). In this case, as in many cases involving closely held corporations whose shares are not traded on an open market, there is no reliable method of determining whether the surrender will result in a loss until the shareholder disposes of his remaining shares. Thus, the Finks' stock surrender does not meet the requirement that an immediately deductible loss must be "actually sustained during the taxable year." 26 CFR § 1.165-1(b) (1986).Finally, treating stock surrenders as ordinary losses might encourage shareholders in failing corporations to convert potential capital losses to ordinary losses by voluntarily surrendering their shares before the corporation fails. In this way, shareholders might avoid the consequences of 26 U.S.C. § 165(g)(1), which provides for capital loss treatment of stock that becomes worthless. [Footnote 13] Similarly, shareholders may be encouraged to transfer corporate stock rather than other property to the corporation in order to realize a current loss. [Footnote 14] Page 483 U. S. 99We therefore hold that a dominant shareholder who voluntarily surrenders a portion of his shares to the corporation, but retains control, does not sustain an immediate loss deductible from taxable income. Rather, the surrendering shareholder must reallocate his basis in the surrendered shares to the shares he retains. [Footnote 15] The shareholder's loss, if Page 483 U. S. 100 any, will be recognized when he disposes of his remaining shares. A reallocation of basis is consistent with the general principle that"[p]ayments made by a stockholder of a corporation for the purpose of protecting his interest therein must be regarded as [an] additional cost of his stock,"and so cannot be deducted immediately. Eskimo Pie Corp. v. Commissioner, 4 T.C. at 676. Our holding today is not inconsistent with the settled rule that the gain or loss on the sale or disposition of shares of stock equals the difference between the amount realized in the sale or disposition and the shareholder's basis in the particular shares sold or exchanged. See 26 U.S.C. § 1001(a); 26 CFR § 1.1012-1(c)(1) (1986). We conclude only that a controlling shareholder's voluntary surrender of shares, like contributions of other forms of property to the corporation, is not an appropriate occasion for the recognition of gain or loss.IVFor the reasons we have stated, the judgment of the Court of Appeals for the Sixth Circuit is reversed.It is so ordered

U.S. Supreme CourtCIR v. Fink, 483 U.S. 89 (1987)Commissioner of Internal Revenue v. FinkNo. 86-511Argued April 27, 1987Decided June 22, 1987483 U.S. 89SyllabusIn an unsuccessful effort to increase the attractiveness of their financially troubled corporation to outside investors, respondents voluntarily surrendered some of their shares to the corporation, thereby reducing their combined percentage ownership from 72.5 percent to 68.5 percent. Respondents received no consideration for the surrendered shares, and no other shareholders surrendered any stock. The corporation eventually was liquidated. On their 1976 and 1977 joint federal income tax returns, respondents claimed ordinary loss deductions for the full amount of their adjusted basis in the surrendered shares. The Commissioner of Internal Revenue disallowed the deductions, concluding that the surrendered stock was a contribution to the corporation's capital, and that, accordingly, the surrender resulted in no immediate tax consequences, and respondents' basis in the surrendered shares should be added to the basis of their remaining shares. The Tax Court sustained the Commissioner's determination, but the Court of Appeals reversed, ruling that respondents were entitled to deduct their basis in the surrendered shares immediately as an ordinary loss, less any resulting increase in the value of their remaining shares.Held: A dominant shareholder who voluntarily surrenders a portion of his shares to the corporation, but who retains control of the corporation, does not sustain an immediate loss deductible for income tax purposes. Rather, the rule applicable to contributions to capital applies, so that the surrendering shareholder must reallocate his basis in the surrendered shares to the shares he retains, and deduct his loss, if any, when he disposes of the remaining shares. This rule is not rendered inapplicable simply because a stock surrender is not a contribution to capital in the strict accounting sense, or because, unlike a typical contribution to capital, a surrender reduces the shareholder's proportionate interest in the corporation. Where, as here, a closely held corporation's shares are not traded on an open market, a stock surrender to that corporation often will not meet the requirement that an immediately deductible loss must be actually sustained during the taxable year, since there will be no reliable method of determining whether the surrender has resulted in a loss until the shareholder disposes of his remaining shares. Moreover, Page 483 U. S. 90 treating stock surrenders as ordinary losses might encourage shareholders in failing corporations to convert potential capital losses to ordinary losses by voluntarily surrendering their shares before the corporation fails, thereby avoiding the consequences of the rule requiring capital loss treatment for stock that becomes worthless. Similarly, shareholders might be encouraged to transfer corporate stock rather than other property to the corporation in order to realize a current loss. Pp. 483 U. S. 95-100.789 F.2d 427, reversed.POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, and O'CONNOR, JJ., joined. WHITE, J., filed a concurring opinion, post p. 483 U. S. 100. SCALIA, J., filed an opinion concurring in the judgment, post p. 483 U. S. 100. BLACKMUN, J., concurred in the result. STEVENS, J., filed a dissenting opinion, post p. 483 U. S. 101.

1981_80-1582

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether the time between dismissal of military charges and a subsequent indictment on civilian criminal charges should be considered in determining whether the delay in bringing respondent to trial for the murder of his wife and two children violated his rights under the Speedy Trial Clause of the Sixth Amendment.IThe facts in this case are not in issue; a jury heard and saw all the witnesses and saw the tangible evidence. The only point raised here by petitioner involves a legal issue under the Speedy Trial Clause of the Sixth Amendment. Accordingly, only a brief summary of the facts is called for. In the early morning of February 17, 1970, respondent's pregnant wife and his two daughters, aged 2 and 5, were brutally murdered in their home on the Fort Bragg, N.C., military reservation. At the time, MacDonald, a physician, was a captain in the Army Medical Corps stationed at Fort Bragg. When the military police arrived at the scene following a call from MacDonald, they found the three victims dead and MacDonald unconscious from multiple stab wounds, most of them superficial, but one a life-threatening chest wound which caused a lung to collapse.At the time and in subsequent interviews, MacDonald told of a bizarre and ritualistic murder. He stated that he was asleep on the couch when he was awakened by his wife's screams. He said he saw a woman with blond hair wearing a floppy hat, white boots, and a short skirt carrying a lighted Page 456 U. S. 4 candle and chanting "acid is groovy; kill the pigs." [Footnote 1] He claimed that three men standing near the couch attacked him, tearing his pajama top, stabbing him, and clubbing him into unconsciousness. When he awoke, he found his wife and two daughters dead. After trying to revive them and covering his wife's body with his pajama top, MacDonald called the military police. He lost consciousness again before the police arrived.Physical evidence at the scene contradicted MacDonald's account and gave rise to the suspicion that MacDonald himself may have committed the crime. [Footnote 2] On April 6, 1970, the Army Criminal Investigation Division (CID) advised MacDonald that he was a suspect in the case and confined him to quarters. The Army formally charged MacDonald with the three murders on May 1, 1970. In accordance with Article Page 456 U. S. 5 32 of the Uniform Code of Military Justice, 10 U.S.C. § 832, the Commanding General of MacDonald's unit appointed an officer to investigate the charges. After hearing a total of 56 witnesses, the investigating officer submitted a report recommending that the charges and specifications against MacDonald be dismissed. The Commanding General dismissed the military charges on October 23, 1970. On December 5, 1970, the Army granted MacDonald's request for an honorable discharge based on hardship. [Footnote 3]At the request of the Justice Department, however, the CID continued its investigation. In June, 1972, the CID forwarded a 13-volume report to the Justice Department recommending further investigation. Additional reports were submitted during November, 1972 and August, 1973. Following evaluation of those reports, in August, 1974, the Justice Department presented the matter to a grand jury. On January 24, 1975, the grand jury returned an indictment charging MacDonald with the three murders.Prior to his trial in Federal District Court, [Footnote 4] MacDonald moved to dismiss the indictment, in part on the grounds that the delay in bringing him to trial violated his Sixth Amendment right to a speedy trial. The District Court denied the motion, but the Court of Appeals allowed an interlocutory appeal and reversed, holding that the delay between the June, 1972, submission of the CID report to the Justice Department and the August, 1974, convening of the grand jury violated MacDonald's constitutional right to a speedy trial. MacDonald v. United States, 531 F.2d 196 (CA4 1976). We granted certiorari and reversed, holding that a criminal defendant could not appeal the denial of a motion to dismiss on Speedy Trial Clause grounds until after the trial had been completed. United States v. MacDonald, 435 U. S. 850 (1978). Page 456 U. S. 6MacDonald was then tried and convicted on two counts of second-degree murder and one count of first-degree murder. He was sentenced to three consecutive terms of life imprisonment. On appeal, a divided panel of the Fourth Circuit again held that the indictment violated MacDonald's Sixth Amendment right to a speedy trial and dismissed the indictment. 632 F.2d 258 (1980). [Footnote 5] The court denied rehearing en banc by an evenly divided vote. 635 F.2d 1115 (1980).We granted certiorari, 451 U.S. 1016 (1981), and we reverse. [Footnote 6]IIThe Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . ." A literal reading of the Amendment suggests that this right attaches only when a formal criminal charge is instituted and a criminal prosecution begins.In United States v. Marion, 404 U. S. 307, 404 U. S. 313 (1971), we held that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused:"On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, Page 456 U. S. 7 nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him."In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U. S. 64 (1975). Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U. S. 783, 431 U. S. 788-789 (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending.Similarly, the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause. [Footnote 7]The Court identified the interests served by the Speedy Trial Clause in United States v. Marion, supra, at 404 U. S. 320:"Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective Page 456 U. S. 8 defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends."See also Barker v. Wingo, 407 U. S. 514, 407 U. S. 532 533 (1972).The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.Once charges are dismissed, the speedy trial guarantee is no longer applicable. [Footnote 8] At that point, the formerly accused is, at most, in the same position as any other subject of a criminal Page 456 U. S. 9 investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in Marion, where the defendants had been subjected to a lengthy investigation which received considerable press attention. [Footnote 9] But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed,"a citizen suffers no restraints on his liberty, and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer."United States v. Marion, 404 U.S. at 404 U. S. 321. Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.IIIThe Court of Appeals held, in essence, that criminal charges were pending against MacDonald during the entire period between his military arrest and his later indictment on civilian charges. [Footnote 10] We disagree. In this case, the homicide charges initiated by the Army were terminated less than a Page 456 U. S. 10 year after the crimes were committed; after that, there was no criminal prosecution pending on which MacDonald could have been tried until the grand jury, in January, 1975, returned the indictment on which he was tried and convicted. [Footnote 11] During the intervening period, MacDonald was not under arrest, not in custody, and not subject to any "criminal prosecution." Inevitably, there were undesirable consequences flowing from the initial accusation by the Army and the continuing investigation after the Army charges were dismissed. Indeed, even had there been no charges lodged by the Army, the ongoing comprehensive investigation would have subjected MacDonald to stress and other adverse consequences. However, once the charges instituted by the Army were dismissed, MacDonald was legally and constitutionally in the same posture as though no charges had been made. [Footnote 12] He was free to go about his affairs, to practice his profession, and to continue with his life. Page 456 U. S. 11The Court of Appeals acknowledged, and MacDonald concedes, that the delay between the civilian indictment and trial was caused primarily by MacDonald's own legal manuevers and, in any event, was not sufficient to violate the Speedy Trial Clause. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.Reversed

U.S. Supreme CourtUnited States v. MacDonald, 456 U.S. 1 (1982)United States v. MacDonaldNo. 80-1582Argued December 7, 1981Decided March 31, 1982456 U.S. 1SyllabusIn May, 1970, the Army formally charged respondent, a captain in the Army Medical Corps, with the murders earlier that year of his pregnant wife and two children on a military reservation. Later that year, the military charges were dismissed and the respondent was honorably discharged on the basis of hardship, but, at the Justice Department's request, the Army Criminal Investigation Division (CID) continued its investigation of the homicides. In June, 1972, the CID forwarded a report recommending further investigation, and the Justice Department, in 1974, ultimately presented the matter to a grand jury, which returned an indictment in January, 1975, charging respondent with the three murders. On an interlocutory appeal from the District Court's denial of respondent's motion to dismiss the indictment, the Court of Appeals reversed, holding that the delay between the June, 1972, submission of the CID report to the Justice Department and the 1974 convening of the grand jury violated respondent's Sixth Amendment right to a speedy trial. After this Court's decision that respondent could not appeal the denial of his motion to dismiss on speedy trial grounds until after completion of the trial, 435 U. S. 850, respondent was tried and convicted. The Court of Appeals again held that the indictment violated respondent's right to a speedy trial, and dismissed the indictment.Held: The time between dismissal of the military charges and the subsequent indictment on civilian charges may not be considered in determining whether the delay in bringing respondent to trial violated his right to a speedy trial under the Sixth Amendment. Pp. 456 U. S. 10. Page 456 U. S. 2(a) The Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment or to a claim under any applicable statute of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. Similarly, any undue delay after the Government, acting in good faith, formally dismisses charges must be scrutinized under the Due Process Clause, not the Speedy Trial Clause. Once charges are dismissed, the speedy trial guarantee -- which is designed primarily to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges -- is no longer applicable. Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation. Pp. 456 U. S. 9.(b) The Court of Appeals erred in holding, in essence, that criminal charges were pending against respondent during the entire period between his military arrest and his later indictment on civilian charges. Although respondent was subjected to stress and other adverse consequences flowing from the initial military charges and the continuing investigation after they were dismissed, he was not under arrest, not in custody, and not subject to any "criminal prosecution" until the civilian indictment was returned. He was legally and constitutionally in the same posture as though no charges had been made; he was free to go about his affairs, to practice his profession, and to continue with his life. Pp. 456 U. S. 10.632 F.2d 258 and 635 F.2d 1115, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 456 U. S. 11. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 456 U. S. 12. Page 456 U. S. 3

1982_82-1066

JUSTICE POWELL delivered the opinion of the Court.The issue is whether excluding a geographically defined class of oil from the coverage of the Crude Oil Windfall Profit Tax Act violates the Uniformity Clause.IDuring the 1970's, the Executive Branch regulated the price of domestic crude oil. See H.R.Rep. No. 96-304, pp. 4-5 (1979). Depending on its vintage and type, oil was divided into differing classes or tiers and assigned a corresponding ceiling price. Initially, there were only two tiers, a lower tier for "old oil" and an upper tier for new production. As the regulatory framework developed, new classes of oil were recognized. [Footnote 1] Page 462 U. S. 76In 1979, President Carter announced a program to remove price controls from domestic oil by September 30, 1981. See id. at 5. By eliminating price controls, the President sought to encourage exploration for new oil and to increase production of old oil from marginally economic operations. See H.R. Doc. No. 96-107, p. 2 (1979). He recognized, however, that deregulating oil prices would produce substantial gains (referred to as "windfalls") for some producers. The price of oil on the world market had risen markedly, and it was anticipated that deregulating the price of oil already in production would allow domestic producers to receive prices far in excess of their initial estimates. See ibid. Accordingly, the President proposed that Congress place an excise tax on the additional revenue resulting from decontrol.Congress responded by enacting the Crude Oil Windfall Profit Tax Act of 1980, 94 Stat. 229, 26 U.S.C. § 4986 et seq. (1976 ed., Supp. V). The Act divides domestic crude oil into three tiers [Footnote 2] and establishes an adjusted base price and a tax rate for each tier. See §§ 4986, 4989, and 4991. The base prices generally reflect the selling price of particular categories of oil under price controls, and the tax rates vary according to the vintages and types of oil included within each tier. [Footnote 3] Page 462 U. S. 77 See Joint Committee on Taxation, General Explanation of the Crude Oil Windfall Profit Tax Act of 1980, 96th Cong., 26-36 (Comm. Print 1981). The House Report explained that the Act isdesigned to impose relatively high tax rates where production cannot be expected to respond very much to further increases in price and relatively low tax rates on oil whose production is likely to be responsive to price.H.R.Rep. No. 96-304 at 7; see S.Rep. No. 96-394, p. 6 (1979)The Act exempts certain classes of oil from the tax, [Footnote 4] 26 U.S.C. § 4991(b) (1976 ed., Supp. V), one of which is "exempt Alaskan oil," § 4991(b)(3). It is defined as:"any crude oil (other than Sadlerochit oil) which is produced -- ""(1) from a reservoir from which oil has been produced in commercial quantities through a well located north of the Arctic Circle, or""(2) from a well located on the northerly side of the divide of the Alaska-Aleutian Range and at least 75 miles from the nearest point on the Trans-Alaska Pipeline System."§ 4994(e). Although the Act refers to this class of oil as "exempt Alaskan oil," the reference is not entirely accurate. The Act exempts only certain oil produced in Alaska from the windfall profit tax. Indeed, less than 20% of current Alaskan production is exempt. [Footnote 5] Nor is the exemption limited to the Page 462 U. S. 78 State of Alaska. Oil produced in certain offshore territorial waters -- beyond the limits of any State -- is included within the exemption.The exemption thus is not drawn on state political lines. Rather, it reflects Congress' considered judgment that unique climatic and geographic conditions require that oil produced from this exempt area be treated as a separate class of oil. See H.R.Conf.Rep. No. 96-817, p. 103 (1980). As Senator Gravel explained, the development and production of oil in arctic and subarctic regions is hampered by "severe weather conditions, remoteness, sensitive environmental and geological characteristics, and a lack of normal social and industrial infrastructure." [Footnote 6] 125 Cong.Rec. 31733 (1979). These factors combine to make the average cost of drilling a well in Alaska as much as 15 times greater than that of drilling a well elsewhere in the United States. See 126 Cong.Rec. 5846 (1980) (remarks of Sen. Gravel). [Footnote 7] Accordingly, Congress Page 462 U. S. 79 chose to exempt oil produced in the defined region from the windfall profit tax. It determined that imposing such a tax "would discourage exploration and development of reservoirs in areas of extreme climatic conditions." H.R.Conf.Rep. No. 96-817, at 103.Six months after the Act was passed, independent oil producers and royalty owners filed suit in the District Court for the District of Wyoming, seeking a refund for taxes paid under the Act. On motion for summary judgment, the District Court held that the Act violated the Uniformity Clause, Art. I, § 8, cl. 1. [Footnote 8] 550 F. Supp. 549, 553 (1982). It recognized that Congress' power to tax is virtually without limitation, but noted that the Clause in question places one specific limit on Congress' power to impose indirect taxes. Such taxes must be uniform throughout the United States, and uniformity is achieved only when the tax "operates with the same force and effect in every place where the subject of it is found.'" Ibid. (quoting Head Money Cases, 112 U. S. 580, 112 U. S. 594 (1884)).Because the Act exempts oil from certain areas within one State, the court found that the Act does not apply uniformly throughout the United States. It recognized that Congress could have "a rational justification for the exemption," but concluded that "[d]istinctions based on geography are simply not allowed." 550 F. Supp. at 553. The court then found that the unconstitutional provision exempting Alaskan oil could not be severed from the remainder of the Act. Id. at 554. It therefore held the entire windfall profit tax invalid. Id. at 555. Page 462 U. S. 80We noted probable jurisdiction, 459 U.S. 1199 (1983), and now reverse.IIAppellees advance two arguments in support of the District Court's judgment. First, they contend that the constitutional requirement that taxes be "uniform throughout the United States" prohibits Congress from exempting a specific geographic region from taxation. They concede that Congress may take geographic considerations into account in deciding what oil to tax. Brief for Taxpayer Appellees 6-7. But they argue that the Uniformity Clause prevents Congress from framing, as it did here, the resulting tax in terms of geographic boundaries. Second, they argue that the Alaskan oil exemption was an integral part of a compromise struck by Congress. Thus, it would be inappropriate to invalidate the exemption but leave the remainder of the tax in effect. Because we find the Alaskan exemption constitutional, we do not consider whether it is severable.AThe Uniformity Clause conditions Congress' power to impose indirect taxes. [Footnote 9] It provides that "all Duties, Imposts and Excises shall be uniform throughout the United States." Art. I, § 8, cl. 1. The debates in the Constitutional Convention provide little evidence of the Framers' intent, [Footnote 10] but the Page 462 U. S. 81 concerns giving rise to the Clause identify its purpose more clearly. The Committee of Detail proposed as a remedy for interstate trade barriers that the power to regulate commerce among the States be vested in the National Government, and the Convention agreed. See 2 M. Farrand, The Records of the Federal Convention of 1787, p. 308 (1911); C. Warren, The Making of the Constitution 567-570 (1928). Some States, however, remained apprehensive that the regionalism that had marked the Confederation would persist. Id. at 586-588. There was concern that the National Government would use its power over commerce to the disadvantage of particular States. The Uniformity Clause was proposed as one of several measures designed to limit the exercise of that power. See 2 M. Farrand, supra, at 417-418; Knowlton v. Moore, 178 U. S. 41, 178 U. S. 103-106 (1900). As Justice Story explained:"[The purpose of the Clause] was to cut off all undue preferences of one State over another in the regulation of subjects affecting their common interests. Unless duties, imposts, and excises were uniform, the grossest and most oppressive inequalities, vitally affecting the pursuits and employments of the people of different States, might exist. The agriculture, commerce, or manufactures of one State might be built up on the ruins of those of another; and a combination of a few States in Congress might secure a monopoly of certain branches of trade and business to themselves, to the injury, if not to the destruction, of their less favored neighbors."1 J. Story, Commentaries on the Constitution of the United States § 957 (T. Cooley ed. 1873). See also 3 Annals of Cong. 378-379 (1792) (remarks of Hugh Williamson); Address of Luther Martin to the Maryland Legislature Page 462 U. S. 82 (Nov. 29, 1787), reprinted in 3 M. Farrand, supra, at 205.This general purpose, however, does not define the precise scope of the Clause. The one issue that has been raised repeatedly is whether the requirement of uniformity encompasses some notion of equality. It was settled fairly early that the Clause does not require Congress to devise a tax that falls equally or proportionately on each State. Rather, as the Court stated in the Head Money Cases, 112 U.S. at 112 U. S. 594, a "tax is uniform when it operates with the same force and effect in every place where the subject of it is found."Nor does the Clause prevent Congress from defining the subject of a tax by drawing distinctions between similar classes. In the Head Money Cases, supra, the Court recognized that, in imposing a head tax on persons coming into this country, Congress could choose to tax those persons who immigrated through the ports, but not those who immigrated at inland cities. As the Court explained,"the evil to be remedied by this legislation has no existence on our inland borders, and immigration in that quarter needed no such regulation."Id. at 112 U. S. 595. The tax applied to all ports alike, and the Court concluded that "there is substantial uniformity within the meaning and purpose of the Constitution." Ibid. Subsequent cases have confirmed that the Framers did not intend to restrict Congress' ability to define the class of objects to be taxed. They intended only that the tax apply wherever the classification is found. See Knowlton v. Moore, supra, at 178 U. S. 106; [Footnote 11] Nicol v. Ames, 173 U. S. 509, 173 U. S. 521-522 (1899). Page 462 U. S. 83The question that remains, however, is whether the Uniformity Clause prohibits Congress from defining the class of objects to be taxed in geographic terms. The Court has not addressed this issue squarely. [Footnote 12] We recently held, however, that the uniformity provision of the Bankruptcy Clause [Footnote 13] did not require invalidation of a geographically defined class of debtors. See Regional Rail Reorganization Act Cases, 419 U. S. 102, 419 U. S. 161 (1974). In that litigation, creditors of bankrupt railroads challenged a statute that was passed to reorganize eight major railroads in the northeast and midwest regions of the country. They argued that the statute violated the uniformity provision of the Bankruptcy Clause because it operated only in a single statutorily defined region. The Court found that"[t]he uniformity provision does not deny Congress power to take into account differences that exist between different parts of the country, and to fashion legislation Page 462 U. S. 84 to resolve geographically isolated problems."Id. at 419 U. S. 159. The fact that the Act applied to a geographically defined class did not render it unconstitutional. We noted that the Act, in fact, had operated uniformly throughout the United States. During the period in which the Act was effective, no railroad reorganization proceeding had been pending outside the statutorily defined region. Id. at 419 U. S. 160.In concluding that the uniformity provision had not been violated, we relied in large part on the Head Money Cases, supra, where the effect of the statute had been to distinguish between geographic regions. We rejected the argument that"the Rail Act differs from the head tax statute because, by its own terms, the Rail Act applies only to one designated region. . . . The definition of the region does not obscure the reality that the legislation applies to all railroads under reorganization pursuant to § 77 during the time the Act applies."419 U.S. at 419 U. S. 161 (emphasis added).BWith these principles in mind, we now consider whether Congress' decision to treat Alaskan oil as a separate class of oil violates the Uniformity Clause. We do not think that the language of the Clause or this Court's decisions prohibit all geographically defined classifications. As construed in the Head Money Cases, the Uniformity Clause requires that an excise tax apply, at the same rate, in all portions of the United States where the subject of the tax is found. Where Congress defines the subject of a tax in nongeographic terms, the Uniformity Clause is satisfied. See Knowlton v. Moore, 178 U.S. at 178 U. S. 106. We cannot say that, when Congress uses geographic terms to identify the same subject, the classification is invalidated. The Uniformity Clause gives Congress wide latitude in deciding what to tax and does not prohibit it from considering geographically isolated problems. See Head Money Cases, supra, at 112 U. S. 595. This is the substance of our decision in the Regional Rail Reorganization Act Page 462 U. S. 85 Cases, 419 U.S. at 419 U. S. 156-161. [Footnote 14] But where Congress does choose to frame a tax in geographic terms, we will examine the classification closely to see if there is actual geographic discrimination. See id. at 419 U. S. 160-161.In this case, we hold that the classification is constitutional. As discussed above, Congress considered the windfall profit tax a necessary component of its program to encourage the exploration for and production of oil. It perceived that the decontrol legislation would result -- in certain circumstances -- in profits essentially unrelated to the objective of the program, and concluded that these profits should be taxed. Accordingly, Congress divided oil into various classes and gave more favorable treatment to those classes that would be responsive to increased prices.Congress clearly viewed "exempt Alaskan oil" as a unique class of oil that, consistent with the scheme of the Act, merited favorable treatment. [Footnote 15] It had before it ample evidence of the disproportionate costs and difficulties -- the fragile ecology, the harsh environment, and the remote location -- associated with extracting oil from this region. We cannot fault its determination, based on neutral factors, that this oil required separate treatment. Nor is there any indication that Congress sought to benefit Alaska for reasons that would offend Page 462 U. S. 86 the purpose of the Clause. Nothing in the Act's legislative history suggests that Congress intended to grant Alaska an undue preference at the expense of other oil-producing States. This is especially clear because the windfall profit tax itself falls heavily on the State of Alaska. See n. 5 supra.IIIHad Congress described this class of oil in nongeographic terms, there would be no question as to the Act's constitutionality. We cannot say that identifying the class in terms of its geographic boundaries renders the exemption invalid. Where, as here, Congress has exercised its considered judgment with respect to an enormously complex problem, we are reluctant to disturb its determination. Accordingly, the judgment of the District Court isReversed

U.S. Supreme CourtUnited States v. Ptasynski, 462 U.S. 74 (1983)United States v. PtasynskiNo. 82-1066Argued April 27, 1983Decided June 6, 1983462 U.S. 74SyllabusThe Crude Oil Windfall Profit Tax Act of 1980 exempts from the tax imposed by the Act domestic crude oil defined as oil produced from wells located north of the Arctic Circle or on the northerly side of the divide of the Alaska-Aleutian Range and at least 75 miles from the nearest point on the Trans-Alaska Pipeline system.Held. This exemption does not violate the Uniformity Clause's requirement that taxes be "uniform throughout the United States." Pp. 462 U. S. 80-86.(a) The Uniformity Clause does not require Congress to devise a tax that falls equally or proportionately on each State, nor does the Clause prevent Congress from defining the subject of a tax by drawing distinctions between similar classes. Pp. 462 U. S. 80-82.(b) Identifying "exempt Alaskan oil" in terms of its geographic boundaries does not render the exemption invalid. Neither the language of the Uniformity Clause nor this Court's decisions prohibit all geographically defined classifications. That Clause gives Congress wide latitude in deciding what to tax, and does not prohibit it from considering geographically isolated problems. Here, Congress cannot be faulted for determining, based on neutral factors, that "exempt Alaskan oil" required separate favorable treatment. Such determination reflects Congress' considered judgment that unique climatic and geographic conditions required that oil produced from the defined region be exempted from the windfall profit tax, which was devised to tax "windfalls" that some oil producers would receive as the result of the deregulation of domestic oil prices that was part of the Government's program to encourage the exploration for and production of oil. Pp. 462 U. S. 84-86.550 F. Supp. 549, reversed.POWELL, J., delivered the opinion for a unanimous Court. Page 462 U. S. 75

1989_89-275

Justice O'CONNOR delivered the opinion of the Court.This case presents three issues related to the application of Rule 11 of the Federal Rules of Civil Procedure: whether a district court may impose Rule 11 sanctions on a plaintiff who has voluntarily dismissed his complaint pursuant to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure; what constitutes the appropriate standard of appellate review of a district court's imposition of Rule 11 sanctions; and whether Rule 11 authorizes awards of attorney's fees incurred on appeal of a Rule 11 sanction.*IIn 1983, Danik, Inc., owned and operated a number of discount men's clothing stores in the Washington, D.C., area. In June, 1983, Intercontinental Apparel, a subsidiary of respondent Hartmarx Corp., brought a breach-of-contract action against Danik in the United States District Court for the District of Columbia. Danik, represented by the law firm of Cooter & Gell (petitioner), responded to the suit by filing a counterclaim against Intercontinental, alleging violations of the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13 et seq. In March, 1984, the District Court granted summary judgment for Intercontinental in its suit against Danik, and, in February, 1985, a jury returned a verdict for Intercontinental on Danik's counterclaim. Both judgments were affirmed on appeal. Danik, Inc. v. Intercontinental Apparel, Inc., 245 U.S.App.D.C. 233, 759 F.2d 959 (1985) (judgment order); Intercontinental Apparel, Inc. v. Danik, Inc., 251 U.S.App.D.C. 327, 784 F.2d 1131 (1986) (judgment order).While this litigation was proceeding, petitioner prepared two additional antitrust complaints against Hartmarx and its Page 496 U. S. 389 two subsidiaries, respondents Hart, Schaffner & Marx and Hickey-Freeman Co. One of the complaints, the one giving rise to the Rule 11 sanction at issue in this case, alleged a nationwide conspiracy to fix prices and to eliminate competition through an exclusive retail agent policy and uniform pricing scheme, as well as other unfair competition practices such as resale price maintenance and territorial restrictions. App. 3-14.Petitioner filed the two complaints in November, 1983. Respondents moved to dismiss the antitrust complaint at issue, alleging, among other things, that Danik's allegations had no basis in fact. Respondents also moved for sanctions under Rule 11. In opposition to the Rule 11 motion, petitioner filed three affidavits setting forth the prefiling research that supported the allegations in the complaint. Id. at 16-17, 22-23, 24-27. In essence, petitioner's research consisted of telephone calls to salespersons in a number of men's clothing stores in New York City, Philadelphia, Baltimore, and Washington, D.C. Petitioner inferred from this research that only one store in each major metropolitan area nationwide sold Hart, Schaffner & Marx suits.In April, 1984, petitioner filed a notice of voluntary dismissal of the complaint, pursuant to Rule 41(a)(1)(i). The dismissal became effective in July, 1984, when the District Court granted petitioner's motion to dispense with notice of dismissal to putative class members. In June, 1984, before the dismissal became effective, the District Court heard oral argument on the Rule 11 motion. The District Court took the Rule 11 motion under advisement.In December, 1987, 3 1/2 years after its hearing on the motion and after dismissal of the complaint, the District Court ordered respondents to submit a statement of costs and attorney's fees. Respondents filed a statement requesting $61,917.99 in attorney's fees. Two months later, the District Court granted respondent's motion for Rule 11 sanctions, holding that petitioner's prefiling inquiry was grossly inadequate. Page 496 U. S. 390 Specifically, the District Court found that the allegations in the complaint regarding exclusive retail agency arrangements for Hickey-Freeman clothing were completely baseless because petitioner researched only the availability of Hart, Schaffner & Marx menswear. In addition, the District Court found that petitioner's limited survey of only four Eastern cities did not support the allegation that respondents had exclusive retailer agreements in every major city in the United States. Accordingly, the District Court determined that petitioner violated Rule 11, and imposed a sanction of $21,452.52 against petitioner and $10,701.26 against Danik.The Court of Appeals for the District of Columbia Circuit affirmed the imposition of Rule 11 sanctions. Danik, Inc. v. Hartmarx Corp., 277 U.S.App.D.C. 333, 875 F.2d 890 (1989). Three aspects of its decision are at issue here. First, the Court of Appeals rejected petitioner's argument that Danik's voluntary dismissal of the antitrust complaint divested the District Court of jurisdiction to rule upon the Rule 11 motion. After reviewing the decisions of other circuits considering the issue, the Court of Appeals concluded that "the policies behind Rule 11 do not permit a party to escape its sanction by merely dismissing an unfounded case." Id. at 337, 875 F.2d at 894. The court reasoned that, because Rule 11 sanctions served to punish and deter, they secured the proper functioning of the legal system "independent of the burdened party's interest in recovering its expenses." Id. at 338, 875 F.2d at 895. Accordingly, the court held that such sanctions must "be available in appropriate circumstances notwithstanding a private party's effort to cut its losses and run out of court, using Rule 41 as an emergency exit." Ibid.Second, the Court of Appeals affirmed the District Court's determination that petitioner had violated Rule 11. Petitioner's arguments failed to "cal[l] into doubt" the two fatal deficiencies identified by the District Court. Rather, petitioner's Page 496 U. S. 391 "account of their efforts d[id] no more than confirm these shortcomings." Ibid.Third, the Court of Appeals considered respondent's claim that petitioner should also pay the expenses respondent incurred in defending its Rule 11 award on appeal. Relying on Westmoreland v. CBS, Inc., 248 U.S.App.D.C. 255, 770 F.2d 1168 (1985), the Court of Appeals held that an appellant who successfully defends a Rule 11 award was entitled to recover its attorney's fees on appeal and remanded the case to the district court to determine the amount of reasonable attorney's fees and to enter an appropriate award.IIThe Rules Enabling Act, 28 U.S.C. § 2072, authorizes the Court to"prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before Magistrates thereof) and courts of appeals."The Court has no authority to enact rules that "abridge, enlarge or modify any substantive right." Ibid. Pursuant to this authority, the Court promulgated the Federal Rules of Civil Procedure to "govern the procedure in the United States district courts in all suits of a civil nature." Fed.Rule Civ.Proc. 1. We therefore interpret Rule 11 according to its plain meaning, see Pavelic & Leflore v. Marvel Entertainment Group, 493 U. S. 120, 493 U. S. 123 (1989), in light of the scope of the congressional authorization.Rule 11 provides, in full:"Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party's pleading, motion, or other paper and state the party's address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that the averments of Page 496 U. S. 392 an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee."An interpretation of the current Rule 11 must be guided, in part, by an understanding of the deficiencies in the original version of Rule 11 that led to its revision. The 1938 version of Rule 11 required an attorney to certify by signing the pleading"that to the best of his knowledge, information, and belief there is good ground to support [the pleading]; and that it is not interposed for delay . . . or is signed with intent to defeat the purpose of this rule."28 U.S.C., pp. 2616-2617 (1940 ed.) An attorney who willfully violated the rule could be "subjected to appropriate disciplinary action." Ibid. Moreover, the pleading could "be stricken as sham and false and the action [could] proceed as though the pleading had not Page 496 U. S. 393 been served." Ibid. In operation, the rule did not have the deterrent effect expected by its drafters. See Advisory Committee Note on Rule 11, 28 U.S.C.App., pp. 575-576. The Advisory Committee identified two problems with the old Rule. First, the Rule engendered confusion regarding when a pleading should be struck, what standard of conduct would make an attorney liable to sanctions, and what sanctions were available. Second, courts were reluctant to impose disciplinary measures on attorneys, see ibid., and attorneys were slow to invoke the rule. Vairo, Rule 11: A Critical Analysis, 118 F.R.D. 189, 191 (1988).To ameliorate these problems, and in response to concerns that abusive litigation practices abounded in the federal courts, the rule was amended in 1983. See Schwarzer, Sanctions Under the New Federal Rule 11 -- A Closer Look, 104 F.R.D. 181 (1985). It is now clear that the central purpose of Rule 11 is to deter baseless filings in District Court and thus, consistent with the Rule Enabling Act's grant of authority, streamline the administration and procedure of the federal courts. See Advisory Committee Note on Rule 11, 28 U.S.C.App., p. 576. Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well-grounded in fact, legally tenable, and "not interposed for any improper purpose." An attorney who signs the paper without such a substantiated belief "shall" be penalized by "an appropriate sanction." Such a sanction may, but need not, include payment of the other parties' expenses. See ibid. Although the rule must be read in light of concerns that it will spawn satellite litigation and chill vigorous advocacy, ibid., any interpretation must give effect to the rule's central goal of deterrence.IIIWe first address the question whether petitioner's dismissal of its antitrust complaint pursuant to Rule 41(a)(1)(i) Page 496 U. S. 394 deprived the District Court of the jurisdiction to award attorney's fees. Rule 41(a)(1) states:"(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim."Rule 41(a) permits a plaintiff to dismiss an action without prejudice only when he files a notice of dismissal before the defendant files an answer or motion for summary judgment and only if the plaintiff has never previously dismissed an action "based on or including the same claim." Once the defendant has filed a summary judgment motion or answer, the plaintiff may dismiss the action only by stipulation, Rule 41(a)(1)(ii), or by order of the court, "upon such terms and conditions as the court deems proper." Rule 41(a)(2). If the plaintiff invokes Rule 41(a)(1) a second time for an "action based on or including the same claim," the action must be dismissed with prejudice.Petitioner contends that filing a notice of voluntary dismissal pursuant to this rule automatically deprives a court of jurisdiction over the action, rendering the court powerless to impose sanctions thereafter. Of the Circuit Courts to consider this issue, only the Court of Appeals for the Second Circuit has held that a voluntary dismissal acts as a jurisdictional bar to further Rule 11 proceedings. See Johnson Page 496 U. S. 395 Chemical Co., Inc. v. Home Care Products, Inc., 823 F.2d 28, 31 (1987).The view more consistent with Rule 11's language and purposes, and the one supported by the weight of Circuit authority, is that district courts may enforce Rule 11 even after the plaintiff has filed a notice of dismissal under Rule 41(a)(1). See Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1076-1079 (CA7 1987), cert. dism'd, 485 U.S. 901 (1988); Greenberg v. Sala, 822 F.2d 882, 885 (CA9 1987); Muthig v. Brant Point Nantucket, Inc., 838 F.2d 600, 603-604 (CA1 1988). The district court's jurisdiction, invoked by the filing of the underlying complaint, supports consideration of both the merits of the action and the motion for Rule 11 sanctions arising from that filing. As the "violation of Rule 11 is complete when the paper is filed," Szabo Food Service, Inc., 823 F.2d at 1077, a voluntary dismissal does not expunge the Rule 11 violation. In order to comply with Rule 11's requirement that a court "shall" impose sanctions "[i]f a pleading, motion, or other paper is signed in violation of this rule," a court must have the authority to consider whether there has been a violation of the signing requirement, regardless of the dismissal of the underlying action. In our view, nothing in the language of Rule 41(a)(1)(i), Rule 11, or other statute or Federal Rule terminates a district court's authority to impose sanctions after such a dismissal.It is well established that a federal court may consider collateral issues after an action is no longer pending. For example, district courts may award costs after an action is dismissed for want of jurisdiction. See 28 U.S.C. § 1919. This Court has indicated that motions for costs or attorney's fees are "independent proceeding[s] supplemental to the original proceeding, and not a request for a modification of the original decree." Sprague v. Ticonic National Bank, 307 U. S. 161, 307 U. S. 170 (1939). Thus, even "years after the entry of a judgment on the merits," a federal court could consider an award of counsel fees. White v. New Hampshire Dept. of Page 496 U. S. 396 Employment Security, 455 U. S. 445, 455 U. S. 451, n. 13 (1982). A criminal contempt charge is likewise "a separate and independent proceeding at law'" that is not part of the original action. Bray v. United States, 423 U. S. 73, 423 U. S. 75 (1975), quoting Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 221 U. S. 445 (1911). A court may make an adjudication of contempt and impose a contempt sanction even after the action in which the contempt arose has been terminated. See United States v. Mine Workers, 330 U. S. 258, 330 U. S. 294 (1947) ("Violations of an order are punishable as criminal contempt even though . . . the basic action has become moot"); Gompers v. Buck's Stove & Range Co., supra, 221 U.S. at 221 U. S. 451 (when main case was settled, action became moot, "of course without prejudice to the power and right of the court to punish for contempt by proper proceedings"). Like the imposition of costs, attorney's fees, and contempt sanctions, the imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such a determination may be made after the principal suit has been terminated.Because a Rule 11 sanction does not signify a District Court's assessment of the legal merits of the complaint, the imposition of such a sanction after a voluntary dismissal does not deprive the plaintiff of his right under Rule 41(a) to dismiss an action without prejudice. "Dismissal without prejudice" is a dismissal that does not "operat[e] as an adjudication upon the merits," Rule 41(a)(1), and thus does not have a res judicata effect. Even if a district court indicated that a complaint was not legally tenable or factually well founded for Rule 11 purposes, the resulting Rule 11 sanction would nevertheless not preclude the refiling of a complaint. Indeed, even if the Rule 11 sanction imposed by the court were a prohibition against refiling the complaint (assuming that would be an "appropriate sanction" for Rule 11 purposes), the preclusion of refiling would be neither a consequence of the Page 496 U. S. 397 dismissal (which was without prejudice) nor a "term or condition" placed upon the dismissal (which was unconditional), see Rule 41(a)(2).The foregoing interpretation is consistent with the policy and purpose of Rule 41(a)(1), which was designed to limit a plaintiff's ability to dismiss an action. Prior to the promulgation of the Federal Rules, liberal state and federal procedural rules often allowed dismissals or nonsuits as a matter of right up until the entry of the verdict, see, e.g., N.C.Gen.Stat.Ann. § 1-224 (1943), or judgment, see, e.g., La. Code Prac.Ann., Art. 491 (1942). See generally Note, The Right of a Plaintiff to Take a Voluntary Nonsuit or to Dismiss His Action Without Prejudice, 37 Va.L.Rev. 969 (1951). Rule 41(a)(1) was designed to curb abuses of these nonsuit rules. See American Bar Association, Proceedings of the Institute on Federal Rules, Cleveland, Ohio 350 (1938) (Rule 41(a)(1) was intended to eliminate "the annoying of a defendant by being summoned into court in successive actions and then, if no settlement is arrived at, requiring him to permit the action to be dismissed and another one commenced at leisure") (remarks of Judge George Donworth, member of the Advisory Committee on Rules for Civil Procedure); id. at 309; see also 9 C. Wright & A. Miller, Federal Practice and Procedure § 2363, p. 152 (1971). Where state statutes and common law gave plaintiffs expansive control over their suit, Rule 41(a)(1) preserved a narrow slice: it allowed a plaintiff to dismiss an action without the permission of the adverse party or the court only during the brief period before the defendant had made a significant commitment of time and money. Rule 41(a)(1) was not designed to give a plaintiff any benefit other than the right to take one such dismissal without prejudice.Both Rule 41(a)(1) and Rule 11 are aimed at curbing abuses of the judicial system, and thus their policies, like their language, are completely compatible. Rule 41(a)(1) limits a litigant's power to dismiss actions, but allows one dismissal without prejudice. Rule 41(a)(1) does not codify any policy Page 496 U. S. 398 that the plaintiff's right to one free dismissal also secures the right to file baseless papers. The filing of complaints, papers, or other motions without taking the necessary care in their preparation is a separate abuse of the judicial system, subject to separate sanction. As noted above, a voluntary dismissal does not eliminate the Rule 11 violation. Baseless filing puts the machinery of justice in motion, burdening courts and individuals alike with needless expense and delay. Even if the careless litigant quickly dismisses the action, the harm triggering Rule 11's concerns has already occurred. Therefore, a litigant who violates Rule 11 merits sanctions even after a dismissal. Moreover, the imposition of such sanctions on abusive litigants is useful to deter such misconduct. If a litigant could purge his violation of Rule 11 merely by taking a dismissal, he would lose all incentive to "stop, think and investigate more carefully before serving and filing papers." Amendments to Rules, 97 F.R.D. 165, 192 (1983) (Letter from Judge Walter Mansfield, Chairman, Advisory Committee on Civil Rules) (March 9, 1982).We conclude that petitioner's voluntary dismissal did not divest the District Court of jurisdiction to consider respondent's Rule 11 motion. Although Rule 11 does not establish a deadline for the imposition of sanctions, the Advisory Committee did not contemplate there would be a lengthy delay prior to their imposition, such as occurred in this case. Rather,"it is anticipated that, in the case of pleadings, the sanctions issue under Rule 11 normally will be determined at the end of the litigation, and, in the case of motions, at the time when the motion is decided or shortly thereafter."Advisory Committee Note on Rule 11, 28 U.S.C.App., p. 576. District courts may, of course, "adopt local rules establishing timeliness standards," White v. New Hampshire Dept. of Employment Security, 455 U.S. at 455 U. S. 454, for filing and deciding Rule 11 motions. Page 496 U. S. 399IVPetitioner further contends that the Court of Appeals did not apply a sufficiently rigorous standard in reviewing the District Court's imposition of Rule 11 sanctions. Determining whether an attorney has violated Rule 11 involves a consideration of three types of issues. The court must consider factual questions regarding the nature of the attorney's prefiling inquiry and the factual basis of the pleading or other paper. Legal issues are raised in considering whether a pleading is "warranted by existing law or a good faith argument" for changing the law and whether the attorney's conduct violated Rule 11. Finally, the district court must exercise its discretion to tailor an "appropriate sanction."The Court of Appeals in this case did not specify the applicable standard of review. There is, however, precedent in the District of Columbia Circuit for applying an abuse of discretion standard to the determination whether a filing had an insufficient factual basis or was interposed for an improper purpose, but reviewing de novo the question whether a pleading or motion is legally sufficient. See, e.g., International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Airline Div.) v. Association of Flight Attendants, 274 U.S.App.D.C. 370, 373, 864 F.2d 173, 176 (1988); Westmoreland v. CBS, Inc., 248 U.S.App.D.C., at 261, 770 F.2d at 1174-1175. Petitioner contends that the Court of Appeals for the Ninth Circuit has adopted the appropriate approach. That Circuit reviews findings of historical fact under the clearly erroneous standard, the determination that counsel violated Rule 11 under a de novo standard, and the choice of sanction under an abuse-of-discretion standard. See Zaldivar v. Los Angeles, 780 F.2d 823, 828 (CA9 1986). The majority of Circuits follow neither approach; rather, they apply a deferential standard to all issues raised by a Rule 11 violation. See Kale v. Combined Ins. Co. of America, 861 F.2d 746, 757-758 (CA1 1988); Teamsters Local Union No. 430 v. Cement Express, Inc., 841 F.2d 66, Page 496 U. S. 400 68 (CA3 1988), cert. denied, 488 U.S. 848 (1988); Stevens v. Lawyers Mutual Liability Ins. Co. of North Carolina, 789 F.2d 1056, 1060 (CA4 1986); Thomas v. Capital Security Services, Inc., 836 F.2d 866, 872 (CA5 1988) (en banc); Century Products, Inc. v. Sutter, 837 F.2d 247, 250 (CA6 1988); Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 933 (CA7 1989); Adamson v. Bowen, 855 F.2d 668, 673 (CA10 1988).Although the Courts of Appeal use different verbal formulas to characterize their standards of review, the scope of actual disagreement is narrow. No dispute exists that the appellate courts should review the district court's selection of a sanction under a deferential standard. In directing the district court to impose an "appropriate" sanction, Rule 11 itself indicates that the district court is empowered to exercise its discretion. See also Advisory Committee Note on Rule 11, 28 U.S.C.App., p. 576 (suggesting a district court "has discretion to tailor sanctions to the particular facts of the case, with which it should be well acquainted").The Circuits also agree that, in the absence of any language to the contrary in Rule 11, courts should adhere to their usual practice of reviewing the district court's finding of facts under a deferential standard. !See! Fed.Rule Civ.Proc. 52(a) ("Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses"). In practice, the "clearly erroneous" standard requires the appellate court to uphold any district court determination that falls within a broad range of permissible conclusions. See, e.g., Anderson v. Bessemer City, 470 U. S. 564, 470 U. S. 573-574 (1985) ("If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice Page 496 U. S. 401 between them cannot be clearly erroneous"); Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 456 U. S. 857-858 (1982). When an appellate court reviews a district court's factual findings, the abuse of discretion and clearly erroneous standards are indistinguishable: A court of appeals would be justified in concluding that a district court had abused its discretion in making a factual finding only if the finding were clearly erroneous.The scope of disagreement over the appropriate standard of review can thus be confined to a narrow issue: whether the court of appeals must defer to the district court's legal conclusions in Rule 11 proceedings. A number of factors have led the majority of Circuits, see supra at 496 U. S. 399-400, as well as a number of commentators, see, e.g., C. Shaffer & P. Sandler, Sanctions: Rule 11 and Other Powers 14-15 (2d ed. 1988) (hereinafter Shaffer & Sandler); American Judicature Society, Rule 11 in Transition, The Report of the Third Circuit Task Force on Federal Rule of Civil Procedure 11, 45-49 (Burbank, reporter 1989), to conclude that appellate courts should review all aspects of a district court's imposition of Rule 11 sanctions under a deferential standard.The Court has long noted the difficulty of distinguishing between legal and factual issues. See Pullman-Standard v. Swint, 456 U. S. 273, 456 U. S. 288 (1982) ("Rule 52(a) does not furnish particular guidance with respect to distinguishing law from fact. Nor do we yet know of any other rule or principle that will unerringly distinguish a factual finding from a legal conclusion"). Making such distinctions is particularly difficult in the Rule 11 context. Rather than mandating an inquiry into purely legal questions, such as whether the attorney's legal argument was correct, the rule requires a court to consider issues rooted in factual determinations. For example, to determine whether an attorney's prefiling inquiry was reasonable, a court must consider all the circumstances of a case. An inquiry that is unreasonable when an attorney has months to prepare a complaint may be reasonable when he has only a Page 496 U. S. 402 few days before the statute of limitations runs. In considering whether a complaint was supported by fact and law "to the best of the signer's knowledge, information, and belief," a court must make some assessment of the signer's credibility. Issues involving credibility are normally considered factual matters. See Fed.Rule Civ.Proc. 52; see also United States v. Oregon Medical Society, 343 U. S. 326, 343 U. S. 332 (1952). The considerations involved in the Rule 11 context are similar to those involved in determining negligence, which is generally reviewed deferentially. See Mars Steel Corp. v. Continental Bank, N.A., supra, at 932; see also 9 C. Wright & A. Miller, Federal Practice and Procedure § 2590 (1971); McAllister v. United States, 348 U. S. 19, 348 U. S. 20-22 (1954) (holding that the District Court's findings of negligence were not clearly erroneous). Familiar with the issues and litigants, the district court is better situated than the court of appeals to marshall the pertinent facts and apply the fact-dependent legal standard mandated by Rule 11. Of course, this standard would not preclude the appellate court's correction of a district court's legal errors, e.g., determining that Rule 11 sanctions could be imposed upon the signing attorney's law firm, see Pavelic & LeFlore v. Marvel Entertainment Group, 493 U. S. 120 (1989), or relying on a materially incorrect view of the relevant law in determining that a pleading was not "warranted by existing law or a good faith argument" for changing the law. An appellate court would be justified in concluding that, in making such errors, the district court abused its discretion. "[I]f a district court's findings rest on an erroneous view of the law, they may be set aside on that basis." Pullman-Standard v. Swint, 456 U.S. supra, at 456 U. S. 287. See also Icicle Seafoods, Inc. v. Worthington, 475 U. S. 709, 475 U. S. 714 (1986) ("If [the Court of Appeals] believed that the District Court's factual findings were unassailable, but that the proper rule of law was misapplied to those findings, it could have reversed the District Court's judgment"). Page 496 U. S. 403Pierce v. Underwood, 487 U. S. 552 (1988), strongly supports applying a unitary abuse of discretion standard to all aspects of a Rule 11 proceeding. In Pierce, the Court held a District Court's determination under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) (1982 ed.), that "the position of the United States was substantially justified" should be reviewed for an abuse of discretion. As a position is "substantially justified" if it "has a reasonable basis in law and fact," 487 U.S. at 487 U. S. 566, n. 2, EAJA requires an inquiry similar to the Rule 11 inquiry as to whether a pleading is "well grounded in fact" and legally tenable. Although the EAJA and Rule 11 are not completely analogous, the reasoning in Pierce is relevant for determining the Rule 11 standard of review.Two factors the Court found significant in Pierce are equally pertinent here. First, the Court indicated that "as a matter of the sound administration of justice,'" deference was owed to the "`judicial actor . . . better positioned than another to decide the issue in question.'" 487 U.S. at 487 U. S. 559-560, quoting Miller v. Fenton, 474 U. S. 104, 474 U. S. 114 (1985). Because a determination whether a legal position is "substantially justified" depends greatly on factual determinations, the Court reasoned that the district court was "better positioned" to make such factual determinations. See 487 U.S. at 487 U. S. 560. A district court's ruling that a litigant's position is factually well grounded and legally tenable for Rule 11 purposes is similarly fact-specific. Pierce also concluded that district court's rulings on legal issues should be reviewed deferentially. See id. at 487 U. S. 560-561. According to the Court, review of legal issues under a de novo standard would require the courts of appeals to invest time and energy in the unproductive task of determining "not what the law now is, but what the Government was substantially justified in believing it to have been." Ibid. Likewise, an appellate court reviewing legal issues in the Rule 11 context would be required to determine whether, at the time the attorney filed the Page 496 U. S. 404 pleading or other paper, his legal argument would have appeared plausible. Such determinations "will either fail to produce the normal law-clarifying benefits that come from an appellate decision on a question of law, or else will strangely distort the appellate process" by establishing circuit law in "a most peculiar, second-handed fashion." Id. at 487 U. S. 561.Second, Pierce noted that only deferential review gave the district court the necessary flexibility to resolve questions involving "multifarious, fleeting, special, narrow facts that utterly resist generalization.'" Id. at 487 U. S. 561-562. The question whether the government has taken a "substantially justified" position under all the circumstances involves the consideration of unique factors that are "little susceptible . . . of useful generalization." Ibid. The issues involved in determining whether an attorney has violated Rule 11 likewise involve "fact-intensive, close calls." Shaffer & Sandler 15. Contrary to petitioner's contentions, Pierce v. Underwood is not distinguishable on the ground that sanctions under Rule 11 are mandatory: that sanctions "shall" be imposed when a violation is found does not have any bearing on how to review the question whether the attorney's conduct violated Rule 11.Rule 11's policy goals also support adopting an abuse-of-discretion standard. The district court is best acquainted with the local bar's litigation practices, and thus best situated to determine when a sanction is warranted to serve Rule 11's goal of specific and general deterrence. Deference to the determination of courts on the front lines of litigation will enhance these courts' ability to control the litigants before them. Such deference will streamline the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court; it will also discourage litigants from pursuing marginal appeals, thus reducing the amount of satellite litigation.Although district courts' identification of what conduct violates Rule 11 may vary, see Schwarzer, Rule 11 Revisited, Page 496 U. S. 405 101 Harv.L.Rev. 1013, 1015-1017 (1988); Note, A Uniform Approach to Rule 11 Sanctions, 97 Yale L.J. 901 (1988), some variation in the application of a standard based on reasonableness is inevitable. "Fact-bound resolutions cannot be made uniform through appellate review, de novo or otherwise." Mars Steel Corp. v. Continental Bank N.A., 880 F.2d at 936; see also Shaffer & Sandler 14-15. An appellate court's review of whether a legal position was reasonable or plausible enough under the circumstances is unlikely to establish clear guidelines for lower courts; nor will it clarify the underlying principles of law. See Pierce, supra, 487 U.S. at 487 U. S. 560-561.In light of our consideration of the purposes and policies of Rule 11 and in accordance with our analysis of analogous EAJA provisions, we reject petitioner's contention that the Court of Appeals should have applied a three-tiered standard of review. Rather, an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court's Rule 11 determination. A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Here, the Court of Appeals determined that the District Court "applied the correct legal standard and offered substantial justification for its finding of a Rule 11 violation." 277 U.S.App. D.C., at 339, 875 F.2d at 896. Its affirmance of the District Court's liability determination is consistent with the deferential standard we adopt today.VFinally, the Court of Appeals held that respondents were entitled to be reimbursed for attorney's fees they had incurred in defending their award on appeal. Accordingly, it remanded to the District Court "to determine such expenses and, ultimately, to enter an appropriate award." Id. at 341, 875 F.2d at 898. This ruling accorded with the decisions of the Courts of Appeals for the First and Seventh Circuits, see Page 496 U. S. 406 Muthig v. Brant Point Nantucket, Inc., 838 F.2d at 607, and Hays v. Sony Corp. of America, 847 F.2d 412, 419-420 (CA7 1988), and conflicted with the decisions of the Fourth and Ninth Circuits, see Basch v. Westinghouse Electric Corp., 777 F.2d 165, 175 (CA4 1985), cert. denied, 476 U.S. 1108 (1986), and Orange Production Credit Assn. v. Frontline Ventures Ltd., 801 F.2d 1581, 1582-1583 (CA9 1986).On its face, Rule 11 does not apply to appellate proceedings. Its provision allowing the court to include"an order to pay to the other party or parties the amount of the reasonable expense, incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee"must be interpreted in light of Federal Rule of Civil Procedure 1, which indicates that the rules only "govern the procedure in the United States district courts." Neither the language of Rule 11 nor the Advisory Committee Note suggests that the Rule could require payment for any activities outside the context of district court proceedings.Respondents interpret the last sentence of Rule 11 as extending the scope of the sanction to cover any expenses, including fees on appeal, incurred "because of the filing." In this case, respondents argue, they would have incurred none of their appellate expenses had petitioner's lawsuit not been filed. This line of reasoning would lead to the conclusion that expenses incurred "because of" a baseless filing extend indefinitely. Cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owens, Prosser and Keeton, on Law of Torts § 41, p. 264 (5th ed. 1984) ("In a philosophical sense, the consequences of an act go forward to eternity. . . . As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability"). Such an interpretation of the rule is overbroad. We believe Rule 11 is more sensibly understood as permitting an award only of those expenses directly caused by the filing, logically, those at the trial level. A plaintiff's filing requires the defendant Page 496 U. S. 407 to take the necessary steps to defend against the suit in district court; if the filing was baseless, attorneys' fees incurred in that defense were triggered by the Rule 11 violation. If the district court imposes Rule 11 sanctions on the plaintiff, and the plaintiff appeals, the expenses incurred in defending the award on appeal are directly caused by the district court's sanction and the appeal of that sanction, not by the plaintiff's initial filing in district court.The Federal Rules of Appellate Procedure place a natural limit on Rule 11's scope. On appeal, the litigants' conduct is governed by Federal Rule of Appellate Procedure 38, which provides:"If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee."If the appeal of a Rule 11 sanction is itself frivolous, Rule 38 gives appellate courts ample authority to award expenses. Indeed, because the district court has broad discretion to impose Rule 11 sanctions, appeals of such sanctions may frequently be frivolous. See 9 J. Moore, B. Ward, & J. Lucas, Moore's Federal Practice � 238.03[2] pp. 38-13, 38-14 (2d ed. 1989) ("[W]here an appeal challenges actions or findings of the district court to which an appellate court gives deference by judging under an abuse of discretion or clearly erroneous standard, the court is more likely to find that the appellant's arguments are frivolous"). If the appeal is not frivolous under this standard, Rule 38 does not require the appellee to pay the appellant's attorney's fees. Respondent's interpretation of Rule 11 would give a district court the authority to award attorney's fees to the appellee even when the appeal would not be sanctioned under the appellate rules. To avoid this somewhat anomalous result, Rules 11 and 38 are better read together as allowing expenses incurred on appeal to be shifted onto appellants only when those expenses are caused by a frivolous appeal, and not merely because a Rule 11 sanction upheld on appeal can ultimately be traced to a baseless filing in district court. Page 496 U. S. 408Limiting Rule 11's scope in this manner accords with the policy of not discouraging meritorious appeals. If appellants were routinely compelled to shoulder the appellees' attorney's fees, valid challenges to district court decisions would be discouraged. The knowledge that, after an unsuccessful appeal of a Rule 11 sanction, the district court that originally imposed the sanction would also decide whether the appellant should pay his opponent's attorney's fee would be likely to chill all but the bravest litigants from taking an appeal. See Webster v. Sowders, 846 F.2d 1032, 1040 (CA6 1988) ("Appeals of district court orders should not be deterred by threats [of Rule 11 sanctions] from district judges"). Moreover, including appellate attorney's fees in a Rule 11 sanction might have the undesirable effect of encouraging additional satellite litigation. For example, if a district court included appellate attorney's fees in the Rule 11 sanction on remand, the losing party might again appeal the amount of the award.It is possible that disallowing an award of appellate attorney's fees under Rule 11 would discourage litigants from defending the award on appeal when appellate expenses are likely to exceed the amount of the sanction. There is some doubt whether this proposition is empirically correct. See American Judicature Society, Rule 11 in Transition, The Report of the Third Circuit Task Force on Federal Rule of Civil Procedure 11, p. 15 (Burbank, reporter 1989). The courts of appeals have ample authority to protect the beneficiaries of Rule 11 sanctions by awarding damages and single or double costs under Rule 38 -- which they may do, as we have noted, when the appellant had no reasonable prospect of meeting the difficult standard of abuse of discretion. Beyond that protection, however, the risk of expending the value of one's award in the course of defending it is a natural concomitant of the American Rule, i.e., that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 421 U. S. 247 (1975). Whenever Page 496 U. S. 409 damages awards at the trial level are small, a successful plaintiff will have less incentive to defend the award on appeal. As Rule 11 is not a fee-shifting statute, the policies for allowing district courts to require the losing party to pay appellate, as well as district court attorneys' fees, are not applicable. "A movant under Rule 11 has no entitlement to fees or any other sanction, and the contrary view can only breed appellate litigation." American Judicature Society, supra, at 49.We affirm the Court of Appeals' conclusion that a voluntary dismissal does not deprive a district court of jurisdiction over a Rule 11 motion, and hold that an appellate court should review the district court's decision in a Rule 11 proceeding for an abuse of discretion. As Rule 11 does not authorize a district court to award attorneys' fees incurred on appeal, we reverse that portion of the Court of Appeals' judgment remanding the case to the district court for a determination of reasonable appellate expenses. For the foregoing reasons, the judgment of the court below is affirmed in part and reversed in part.It is so ordered

U.S. Supreme CourtCooter & Gell v. Hartmarx, 496 U.S. 384 (1990)Cooter & Gell v. Hartmarx CorporationNo. 89-275Argued Feb. 20, 1990Decided June 11, 1990496 U.S. 384SyllabusRespondents, the defendants in a District Court suit instituted by petitioner law firm on behalf of a client, filed a motion to dismiss the complaint as having no basis in fact and a motion for sanctions under Federal Rule of Civil Procedure 11 on the ground that the firm had not made sufficient prefiling inquiries to support the complaint's allegations. Rule 11 -- after specifying, inter alia, that an attorney's signature on a pleading constitutes a certificate that he has read it and believes it to be well grounded in fact and legally tenable -- provides that, if a pleading is signed in violation of the Rule, the court "shall" impose upon the attorney or his client"an appropriate sanction, which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, . . . including a reasonable attorney's fee."Following petitioner's notice of voluntary dismissal of the complaint under Rule 41(a)(1)(i), the court held that petitioner's prefiling inquiries were grossly inadequate and imposed monetary sanctions upon it and its client. The Court of Appeals affirmed, holding that the voluntary dismissal did not divest the District Court of jurisdiction to rule upon the Rule 11 motion; that that court's determination that petitioner had violated Rule 11 was substantially justified; and that an appellant who successfully defends a Rule 11 award is entitled to recover its reasonable attorney's fees on appeal. The court therefore remanded the case for the District Court to determine the amount of such fees and to enter an appropriate award.Held:1. A voluntary Rule 41(a)(1)(i) dismissal does not deprive a district court of jurisdiction over a Rule 11 motion. This view is consistent with Rule 11's purposes of deterring baseless filings and streamlining federal court procedure, and is not contradicted by anything in that Rule or Rule 41(a)(1)(i). Pp. 496 U. S. 393-398.(a) Rule 41(a) permits a voluntary dismissal without prejudice only if the plaintiff files a notice of dismissal before the defendant files an answer or summary judgment motion and the plaintiff has never previously dismissed an action "based on or including the same claim." Once the defendant has responded to the complaint, the plaintiff may dismiss only by stipulation or by order "upon such terms and conditions as the Page 496 U. S. 385 court deems proper." Moreover, a dismissal "operates as an adjudication on the merits" if the plaintiff has previously dismissed the claim. Pp. 496 U. S. 393-394.(b) The district court's jurisdiction, invoked by the filing of the underlying complaint, supports consideration of both the action's merits and the Rule 11 motion arising from that filing. As the Rule 11 violation is complete when the paper is filed, a voluntary dismissal does not expunge the violation. In order to comply with the Rule's requirement that it "shall" impose sanctions, the court must have the authority to consider whether there has been a violation of the signing requirement regardless of the dismissal. Pp. 496 U. S. 394-395.(c) The language of Rules 11 and 41(a)(1) is compatible. Like the imposition of costs, attorney's fees, and contempt sanctions, a Rule 11 sanction is not a judgment on the action's merits, but simply requires the determination of a collateral issue, which may be made after the principal suit's termination. Because such a sanction does not signify a merits determination, its imposition does not deprive the plaintiff of his Rule 41(a) right to dismiss without prejudice. Pp. 496 U. S. 395-397.(d) Because both Rule 41(a)(1) and Rule 11 are aimed at curbing abuses of the judicial system, their policies are completely compatible. Rule 41(a)(1) was designed to limit a plaintiff's ability to dismiss an action in order to curb abuses of preexisting state and federal procedures allowing dismissals as a matter of right up until the entry of the verdict or judgment. It does not codify any policy that the plaintiff's right to one free dismissal also secures the right to file baseless papers. If a litigant could purge his Rule 11 violation merely by taking a dismissal, he would lose all incentive to investigate more carefully before serving and filing papers. Pp. 496 U. S. 397-398.2. A court of appeals should apply an abuse-of-discretion standard in reviewing all aspects of a district court's decision in a Rule 11 proceeding. Petitioner's contention that the Court of Appeals should have applied a three-tiered standard of review -- a clearly erroneous standard for findings of historical fact, a de novo standard for the determination that counsel violated Rule 11, and an abuse-of-discretion standard for the choice of sanction -- is rejected. Pp. 496 U. S. 399-405.(a) Appellate courts must review the selection of a sanction under an abuse-of-discretion standard, since, in directing the district court to impose an "appropriate" sanction, Rule 11 itself indicates that that court is empowered to exercise its discretion. Moreover, in the absence of any language in the Rule to the contrary, courts should adhere to their usual practice of reviewing the district court's findings of fact under a deferential standard. In the present context, the abuse-of-discretion and clearly erroneous standards are indistinguishable: Page 496 U. S. 386 a court of appeals would be justified in concluding that a district court had abused its discretion in making a factual finding only if the finding were clearly erroneous. Furthermore, the court of appeals must defer to the district court's legal conclusions in Rule 11 proceedings, since those conclusions are rooted in factual determinations, rather than purely legal inquiries, and the district court, familiar with the issues and litigants, is better situated to marshall the pertinent facts and apply the necessary fact-dependent legal standard. If the district court based its conclusion on an erroneous view of the law, the appellate court would be justified in concluding that it had abused its discretion. Pp. 496 U. S. 400-402.(b) Pierce v. Underwood, 487 U. S. 552 -- which held that a District Court's determination under the Equal Access to Justice Act (EAJA) that "the position of the United States was substantially justified" should be reviewed for an abuse of discretion -- strongly supports applying a unitary abuse-of-discretion standard to all aspects of a Rule 11 proceeding. Pp. 496 U. S. 403-404.(c) Adoption of an abuse-of-discretion standard is also supported by Rule 11's policy goals of deterrence and streamlining the judicial process. The district court is best situated to determine whether a sanction is warranted in light of the local bar's litigation practices, and deference to that court's determination will enhance its ability to control litigants, free appellate courts from the duty of reweighing evidence, and discourage litigants from pursuing marginal appeals. Pp. 496 U. S. 404-405.(d) The Court of Appeals' determination that the District Court "applied the correct legal standard and offered substantial justification for its finding of a Rule 11 violation" was consistent with the deferential standard of review adopted here. P. 496 U. S. 405.3. Rule 11 does not authorize a district court to award an attorney's fee incurred on appeal. Pp. 496 U. S. 405-409.(a) Neither the language of the Rule's sanctions provision -- when read in light of Rule l's statement that the Rules only govern district court procedure -- nor the Advisory Committee Note suggests that the Rule could require payment for appellate proceedings. Respondents' interpretation that the provision covers any and all expenses incurred "because of the filing" is overbroad. A more sensible reading permits an award only of those expenses directly caused by the filing -- logically, those at the trial level -- and considers the expenses of defending the award on appeal to arise from the award itself and the taking of the appeal, not from the initial filing of the complaint. Pp. 496 U. S. 406-407.(b) Federal Rule of Appellate Procedure 38 -- which authorizes courts of appeals to "award just damages and single or double costs to the appellee" upon determining that an appeal is frivolous -- places a natural limit on Rule 11's scope. If a Rule 11 appeal is frivolous, as it often Page 496 U. S. 387 will be, given the district court's broad discretion to impose sanctions, Rule 38 gives the appellate court ample authority to award expenses. However, if the appeal is not frivolous, Rule 38 does not require the appellee to pay the appellant's attorney's fees. P. 496 U. S. 407.(c) Limiting Rule 11's scope to trial court expenses accords with the policy of not discouraging meritorious appeals, since many valid challenges might not be filed if unsuccessful appellants were routinely required by the very courts which originally imposed sanctions to shoulder the appellee's fees. Moreover, including such fees in a Rule 11 sanction might have the undesirable effect of encouraging additional satellite litigation, since a losing party subjected to fees on remand might again appeal the award. Even if disallowing a Rule 11 appellate attorney's fees award would discourage litigants from defending the award when appellate expenses were likely to exceed the sanction's amount, the risk of expending the value of one's award while defending it is a natural concomitant of the American Rule, i.e., that the prevailing litigant is ordinarily not entitled to collect an attorney's fee. Pp. 496 U. S. 408-409.277 U.S.App.D.C. 333, 875 F.2d 890 (CADC 1989), affirmed in part and reversed in part.O'CONNOR, J., delivered the opinion for a unanimous Court with respect to Parts I, II, IV, and V, and the opinion of the Court with respect to Part III, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in part and. dissenting in part, post, p. 496 U. S. 409. Page 496 U. S. 388

1999_98-2060

JUSTICE SCALIA delivered the opinion of the Court.This case presents the question whether a federal habeas court is barred from considering an ineffective-assistanceof-counsel claim as "cause" for the procedural default of another claim when the ineffective-assistance claim has itself been procedurally defaulted.IRespondent was indicted by an Ohio grand jury for aggravated murder and aggravated robbery. He entered a guilty plea while maintaining his innocence-a procedure we held to be constitutional in North Carolina v. Alford, 400 U. S. 25 (1970)-in exchange for the prosecution's agreement that the guilty plea could be withdrawn if the three-judge panel that accepted it elected, after a mitigation hearing, to impose the death penalty. The panel accepted respondent's plea based on the prosecution's recitation of the evidence supporting the charges and, following a mitigation hearing, sentenced him to life imprisonment with parole eligibility after 30 years on the aggravated-murder count and to a concurrent term of 10 to 25 years on the aggravated-robbery count. On direct appeal respondent, represented by new counsel, assigned only the single error that the evidence offered in mitigation established that he should have beenSalazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, 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, Mike Hatch of Minnesota, Mike 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, John J. Farmer, Jr., of New Jersey, Patricia A. Madrid of New Mexico, W A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Jan Graham of Utah, William H. Sorrell of Vermont, Christine Q Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin.449eligible for parole after 20 rather than 30 years. The Ohio Court of Appeals affirmed, and respondent did not appeal to the Ohio Supreme Court.After unsuccessfully pursuing state postconviction relief pro se, respondent, again represented by new counsel, filed an application in the Ohio Court of Appeals to reopen his direct appeal, pursuant to Ohio Rule of Appellate Procedure 26(B),1 on the ground that his original appellate counsel was constitutionally ineffective in failing to raise on direct appeal a challenge to the sufficiency of the evidence. The appellate court dismissed the application because respondent had failed to show, as the rule required, good cause for filing after the 90-day period allowed.2 The Ohio Supreme Court, in a one-sentence per curiam opinion, affirmed. State v. Carpenter, 74 Ohio St. 3d 408,659 N. E. 2d 786 (1996).On May 3, 1996, respondent filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Ohio, alleging, inter alia, that the evidence supporting his plea and sentence was insufficient, in violation of the Fifth and Fourteenth Amendments, and that his appellate counsel was constitutionally ineffective in failing to raise that claim on direct appeal. Concluding that respondent's sufficiency-of-the-evidence claim was procedurally defaulted, the District Court considered next whether the ineffective-assistance-of-counsel claim could1 Rule 26(B) provides, in relevant part:"(1) A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time."2 Respondent filed his application to reopen on July 15, 1994. Although Rule 26(B) did not become effective until July 1, 1993, more than two years after respondent's direct appeal was completed, the Court of Appeals considered respondent's time for filing to have begun on the Rule's effective date and to have expired 90 days thereafter.450serve as cause excusing that default. The District Court acknowledged that the ineffective-assistance claim had been dismissed on procedural grounds, but concluded that Rule 26(B)'s inconsistent application by the Ohio courts rendered it inadequate to bar federal habeas review. See Ford v. Georgia, 498 U. S. 411, 423-424 (1991) (state procedural default is not an "independent and adequate state ground" barring subsequent federal review unless the state rule was "'firmly established and regularly followed'" at the time it was applied). Proceeding to the merits of the ineffectiveassistance claim, the District Court concluded that respondent's appellate counsel was constitutionally ineffective under the test established in Strickland v. Washington, 466 U. S. 668 (1984), and granted the writ of habeas corpus conditioned on the state appellate court's reopening of respondent's direct appeal of the sufficiency-of-the-evidence claim.On cross-appeals, the United States Court of Appeals for the Sixth Circuit held that respondent's ineffectiveassistance-of-counsel claim served as "cause" to excuse the procedural default of his sufficiency-of-the-evidence claim, whether or not the ineffective-assistance claim itself had been procedurally defaulted. Carpenter v. Mohr, 163 F. 3d 938 (CA6 1998). In the panel's view, it sufficed that respondent had exhausted the ineffective-assistance claim by presenting it to the state courts in his application to reopen the direct appeal, even though that application might, under Ohio law, have been time barred. Finding in addition prejudice from counsel's failure to raise the sufficiencyof-the-evidence claim on direct appeal, the Sixth Circuit directed the District Court to issue the writ of habeas corpus conditioned upon the state court's according respondent a new culpability hearing. We granted certiorari. 528 U. S. 985 (1999).IIPetitioner contends that the Sixth Circuit erred in failing to recognize that a procedurally defaulted ineffective-451assistance-of-counsel claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the "cause and prejudice" standard with respect to the ineffective-assistance claim itself. We agree.The procedural default doctrine and its attendant "cause and prejudice" standard are "grounded in concerns of comity and federalism," Coleman v. Thompson, 501 U. S. 722, 730 (1991), and apply alike whether the default in question occurred at trial, on appeal, or on state collateral attack, Murray v. Carrier, 477 U. S. 478, 490-492 (1986). "[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." Coleman, 501 U. S., at 732. We therefore require a prisoner to demonstrate cause for his statecourt default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim. Id., at 750. The one exception to that rule, not at issue here, is the circumstance in which the habeas petitioner can demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice. Ibid.Although we have not identified with precision exactly what constitutes "cause" to excuse a procedural default, we have acknowledged that in certain circumstances counsel's ineffectiveness in failing properly to preserve the claim for review in state court will suffice. Carrier, 477 U. S., at 488-489. Not just any deficiency in counsel's performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution. Ibid. In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim. And we held in Carrier that the principles of comity and federalism that underlie our longstanding exhaustion doctrine-then as452now codified in the federal habeas statute, see 28 U. s. c. §§ 2254(b), (c)-require that constitutional claim, like others, to be first raised in state court. "[A] claim of ineffective assistance," we said, generally must "be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Carrier, supra, at 489.The question raised by the present case is whether Carrier's exhaustion requirement for claims of ineffective assistance asserted as cause is uniquely immune from the procedural-default rule that accompanies the exhaustion requirement in all other contexts-whether, in other words, it suffices that the ineffective-assistance claim was "presented" to the state courts, even though it was not presented in the manner that state law requires. That is not a hard question. An affirmative answer would render Carrier's exhaustion requirement illusory.3We recognized the inseparability of the exhaustion rule and the procedural-default doctrine in Coleman: "In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state3 Last Term, in a per curiam summary reversal, we clearly expressed the view that a habeas petitioner must satisfy the "cause and prejudice" standard before his procedurally defaulted ineffective-assistance claim will excuse the default of another claim. Stewart v. LaGrand, 526 U. S. 115, 120 (1999). Respondent contends that we are not bound by LaGrand because in that case the habeas petitioner had waived his ineffectiveassistance claim in the District Court, thereby rendering our procedural default discussion dicta, and because, in any event, per curiam opinions decided without the benefit of full briefing or oral argument are of little precedential value. Whether our procedural default analysis in LaGrand is properly characterized as dictum or as alternative holding, and whatever the precedential value of a per curiam opinion, the ease with which we so recently resolved this identical question reflects the degree to which the proper resolution flows irresistibly from our precedents.453ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases." 501 U. S., at 732. We again considered the interplay between exhaustion and procedural default last Term in O'Sullivan v. Boerckel, 526 U. S. 838 (1999), concluding that the latter doctrine was necessary to "'protect the integrity' of the federal exhaustion rule." Id., at 848 (quoting id., at 853 (STEVENS, J., dissenting)). The purposes of the exhaustion requirement, we said, would be utterly defeated if the prisoner were able to obtain federal habeas review simply by "'letting the time run'" so that state remedies were no longer available. Id., at 848. Those purposes would be no less frustrated were we to allow federal review to a prisoner who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it. In such circumstances, though the prisoner would have "concededly exhausted his state remedies," it could hardly be said that, as comity and federalism require, the State had been given a "fair 'opportunity to pass upon [his claims].'" Id., at 854 (STEVENS, J., dissenting) (emphasis added) (quoting Darr v. Burford, 339 U. S. 200, 204 (1950)).To hold, as we do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that that procedural default may not itself be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim. Indeed, the Sixth Circuit may well conclude on remand that respondent can meet that standard in this case (although we should note that respondent has not argued that he can, preferring instead to argue that he does not have to). Or it may conclude, as did the District Court, that Ohio Rule of Appellate Procedure 26(B) does not constitute an adequate procedural ground to bar federal habeas review of the ineffective-assistance claim. We express no view as to these issues, or on the question454BREYER, J., concurring in judgmentwhether respondent's appellate counsel was constitutionally ineffective in not raising the sufficiency-of-the-evidence claim in the first place.***For the foregoing reasons, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1999SyllabusEDWARDS, WARDEN v. CARPENTERCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 98-2060. Argued February 28, 2000-Decided April 25, 2000Respondent pleaded guilty while maintaining his innocence to Ohio murder and robbery charges in exchange for the prosecutor's agreement that the plea could be withdrawn if the death penalty was imposed. The Ohio Court of Appeals affirmed his conviction and sentence of imprisonment, and he did not appeal to the Ohio Supreme Court. After pursuing state postconviction relief pro se, respondent, represented by new counsel, petitioned the Ohio Court of Appeals to reopen his direct appeal, claiming that his original appellate counsel was constitutionally ineffective in failing to challenge the sufficiency of the evidence supporting his conviction and sentence. The court dismissed the application as untimely under Ohio Rule of Appellate Procedure 26(B), and the Ohio Supreme Court affirmed. Respondent then filed a federal habeas petition, raising, inter alia, the sufficiency-of-the-evidence claim, and alleging that his appellate counsel was constitutionally ineffective in not raising that claim on direct appeal. The District Court found that his ineffective-assistance-of-counsel claim was cause excusing the procedural default of his sufficiency-of-the-evidence claim because Rule 26(B) was not an adequate procedural ground to bar federal review of the ineffective-assistance claim; concluded that respondent's appellate counsel was constitutionally ineffective; and granted the writ conditioned on the state appellate court's reopening of respondent's direct appeal of the sufficiency-of-the-evidence claim. On cross-appeals, the Sixth Circuit held that the ineffective-assistance claim served as cause to excuse the default of the sufficiency-of-the-evidence claim, whether or not the former claim had been procedurally defaulted, because respondent had exhausted the ineffective-assistance claim by presenting it to the state courts in his application to reopen the direct appeal. Finding prejudice from counsel's failure to raise the sufficiency-of-the-evidence claim on direct appeal, it directed the District Court to issue the writ conditioned upon the state court's according respondent a new culpability hearing.Held: A procedurally defaulted ineffective-assistance claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the "cause and prejudice" standard with respect to the ineffective-assistance claim itself. The procedural447default doctrine and its attendant "cause and prejudice" standard are grounded in comity and federalism concerns, Coleman v. Thompson, 501 U. S. 722, 730, and apply whether the default occurred at trial, on appeal, or on state collateral attack, Murray v. Carrier, 477 U. S. 478, 490-492. Thus, a prisoner must demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider that claim's merits. 501 U. S., at 750. Counsel's ineffectiveness in failing properly to preserve a claim for state-court review will suffice as cause, but only if that ineffectiveness itself constitutes an independent constitutional claim. Carrier, supra, at 488-499. The comity and federalism principles underlying the doctrine of exhaustion of state remedies require an ineffective-assistance claim to be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Carrier, supra, at 489. The doctrine's purposes would be frustrated if federal review were available to a prisoner who had presented his claim in state court, but in such a manner that the state court could not, under its procedural rules, have entertained it. Pp. 450-454.163 F.3d 938, reversed and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., filed an opinion concurring in the judgment, in which STEVENS, J., joined, post, p. 454.Edward B. Foley, State Solicitor of Ohio, argued the cause for petitioner. With him on the briefs were Betty D. Montgomery, Attorney General, David M. Gormley, and StephenJ. Joseph Bodine, Jr., argued the cause for respondent.With him on the brief were David H. Bodiker, Laurence E. Komp, and Angela Wilson Miller. ** A brief of amici curiae urging reversal was filed for the State of Texas et al. by John Cornyn, Attorney General of Texas, Andy Taylor, First Assistant Attorney General, Shane Phelps, Deputy Attorney General for Criminal Justice, Gregory S. Coleman, Solicitor General, Idolina G. McCullough, Assistant Solicitor General, Michael E. McLachlan, Solicitor General of Colorado, and John M. Bailey, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, Janet Napolitano of Arizona, Bill Lockyer of California, Ken448Full Text of Opinion

1963_361

MR. JUSTICE WHITE delivered the opinion of the Court.Since 1948, § 812(e)(1)(A) of the Internal Revenue Code of 1939 has allowed a "marital deduction" from a decedent's gross taxable estate for the value of interests Page 376 U. S. 504 in property passing from the decedent to his surviving spouse. [Footnote 1] Subsection (B) adds the qualification, however, that interests defined therein as "terminable" shall not qualify as an interest in property to which the marital deduction applies. [Footnote 2] The question raised by this case is whether the allowance provided by California law for the support of a widow during the settlement of her husband's estate is a terminable interest.Petitioners are the widow-executrix and testamentary trustee under the will of George Richards, who died a resident of California on May 27, 1951. Acting under the Probate Code of California, the state court, on June 30, 1952, allowed Mrs. Richards the sum of $3,000 per month from the corpus of the estate for her support and maintenance, beginning as of May 27, 1951, and continuing for a period of 24 months from that date. Under the terms of the order, an allowance of $42,000 had Page 376 U. S. 505 accrued during the 14 months since her husband's death. This amount, plus an additional $3,000 per month for the remainder of the two-year period, making a total of $72,000, was in fact paid to Mrs. Richards as widow's allowance.On the federal estate tax return filed on behalf of the estate, the full $72,000 was claimed as a marital deduction under § 812(e) of the Internal Revenue Code of 1939. The deduction was disallowed, as was a claim for refund after payment of the deficiency, and the present suit for refund was then brought in the District Court. The District Court granted summary judgment for the United States, holding, on the authority of Cunha's Estate v. Commissioner, 279 F.2d 292, that the allowance to the widow was a terminable interest, and not deductible under the marital provision of the Internal Revenue Code. The Court of Appeals affirmed, 317 F.2d 821, and we brought the case here because of an asserted conflict between the decision below and that of the Court of Appeals for the Fifth Circuit in United States v. First National Bank & Trust Co. of Augusta, 297 F.2d 312. 375 U.S. 894. For the reasons given below, we affirm the decision of the Court of Appeals.In enacting the Revenue Act of 1948, 62 Stat. 110, with its provision for the marital deduction, Congress left undisturbed § 812(b)(5) of the 1939 Code, which allowed an estate tax deduction, as an expense of administration, for amounts "reasonably required and actually expended for the support during the settlement of the estate of those dependent upon the decedent." 26 U.S.C. (1946 ed.) § 812(b)(5). As the legislative history shows, support payments under § 812(b)(5) were not to be treated as part of the marital deduction allowed by § 812(e)(1). [Footnote 3] The Revenue Act of 1950, 64 Stat. 906, however, repealed Page 376 U. S. 506 § 812(b)(5) because, among other reasons, Congress believed the section resulted in discriminations in favor of States having liberal family allowances. [Footnote 4] Thereafter allowances paid for the support of a widow during the settlement of an estate "heretofore deductible under section 812(b) will be allowable as a marital deduction subject to the conditions and limitations of section 812(e)." S.Rep. No. 2375, 81st Cong., 2d Sess., p. 130.The "conditions and limitations" of the marital deduction under § 812(e) are several, but we need concern ourselves with only one aspect of § 812(e)(1)(B), which disallows the deduction of "terminable" interests passing to the surviving spouse. It was conceded in the Court of Appeals that the right to the widow's allowance here involved is an interest in property passing from the decedent within the meaning of § 812(e)(3), that it is an interest to which the terminable interest rule of § 812(e)(1)(B) is applicable, and that the conditions set forth in (i) and (ii) of § 812(e)(1)(B) were satisfied under the decedent's will and codicils thereto. The issue, therefore, is whether the interest in property passing to Mrs. Richards as widow's allowance would "terminate or fail" upon the "lapse of time, upon the occurrence of an event or contingency, or upon the failure of an event or contingency to occur."We accept the Court of Appeals' description of the nature and characteristics of the widow's allowance under California law. In that State, the right to a widow's allowance is not a vested right, and nothing accrues before the order granting it. The right to an allowance is lost when the one for whom it is asked has lost the status upon Page 376 U. S. 507 which the right depends. If a widow dies or remarries prior to securing an order for a widow's allowance, the right does not survive such death or remarriage. The amount of the widow's allowance which has accrued and is unpaid at the date of death of the widow is payable to her estate, but the right to future payments abates upon her death. The remarriage of a widow subsequent to an order for an allowance likewise abates her right to future payments. 317 F.2d 821, 825.In light of these characteristics of the California widow's allowance, Mrs. Richards did not have an indefeasible interest in property at the moment of her husband's death, since either her death or remarriage would defeat it. If the order for support allowance had been entered on the day of her husband's death, her death or remarriage at any time within two years thereafter would terminate that portion of the interest allocable to the remainder of the two-year period. As of the date of Mr. Richards' death, therefore, the allowance was subject to failure or termination "upon the occurrence of an event or contingency." That the support order was entered in this case 14 months later does not, in our opinion, change the defeasible nature of the interest.Petitioners ask us to judge the terminability of the widow's interest in property represented by her allowance as of the date of the Probate Court's order, rather than as of the date of her husband's death. The court's order, they argue, unconditionally entitled the widow to $42,000 in accrued allowance, of which she could not be deprived by either her death or remarriage. It is true that some courts have followed this path, [Footnote 5] but it is difficult to accept an approach which would allow a deduction Page 376 U. S. 508 of $42,000 on the facts of this case, a deduction of $72,000 if the order had been entered at the end of two years from Mr. Richards' death and none at all if the order had been entered immediately upon his death. Moreover, judging deductibility as of the date of the Probate Court's order ignores the Senate Committee's admonition that, in considering terminability of an interest for purposes of a marital deduction, "the situation is viewed as at the date of the decedent's death." S.Rep.No. 1013, Part 2, 80th Cong., 2d Sess., p. 10. We prefer the course followed by both the Court of Appeals for the Ninth Circuit in Cunha's Estate, supra, and by the Court of Appeals for the Eighth Circuit in United States v. Quivey, 292 F.2d 252. Both courts have held the date of death of the testator to be the correct point of time from which to judge the nature of a widow's allowance for the purpose of deciding terminability and deductibility under § 812(e)(1). This is in accord with the rule uniformly followed with regard to interests other than the widow's allowance, that qualification for the marital deduction must be determined as of the time of death. [Footnote 6]Our conclusion is confirmed by § 812(e)(1)(D), [Footnote 7] which saves from the operation of the terminable interest Page 376 U. S. 509 rule interests which by their terms may (but do not in fact) terminate only upon failure of the widow to survive her husband for a period not in excess of six months. The premise of this provision is that an interest passing to a widow is normally to be judged as of the time of the testator's death, rather than at a later time when the condition imposed may be satisfied; hence, the necessity to provide an exception to the rule in the case of a six months' survivorship contingency in a will. [Footnote 8] A gift conditioned upon eight months' survivorship, rather than six, is a nondeductible terminable interest for reasons which also disqualify the statutory widow's allowance in California where the widow must survive and remain unmarried at least to the date of an allowance order to become indefeasibly entitled to any widow's allowance at all.Petitioners contend, however, that the sole purpose of the terminable interest provisions of the Code is to assure that interests deducted from the estate of the deceased spouse will not also escape taxation in the estate of the survivor. This argument leads to the conclusion that, since it is now clear that, unless consumed or given away during Mrs. Richards' life, the entire $72,000 will be taxed to her estate, it should not be included in her husband's. But, as we have already seen, there is no provision in the Code for deducting all terminable interests which become nonterminable at a later date and therefore taxable in the estate of the surviving spouse if not consumed or transferred. Page 376 U. S. 510 The examples cited in the legislative history make it clear that the determinative factor is not taxability to the surviving spouse, but terminability as defined by the statute. [Footnote 9] Under the view advanced by petitioners, all cash allowances actually paid would fall outside § 812(e)(1)(B); on two different occasions, the Senate has refused to give its approval to House-passed amendments to the 1954 Code which would have made the terminable interest rule inapplicable to all widow's allowances actually paid within specified periods of time. [Footnote 10]We are mindful that the general goal of the marital deduction provisions was to achieve uniformity of federal estate tax impact between those States with community property laws and those without them. [Footnote 11] But the device of the marital deduction, which Congress chose to achieve uniformity, was knowingly hedged with limitations, including the terminable interest rule. These provisions may be imperfect devices to achieve the desired end, [Footnote 12] but they are the means which Congress chose. To the extent it was thought desirable to modify the rigors of the terminable interest rule, exceptions to the rule were written into the Code. Courts should hesitate to provide still another exception by straying so far from the statutory language as to allow a marital deduction for the widow's allowance provided by the California statute. Page 376 U. S. 511 The achievement of the purposes of the marital deduction is dependent to a great degree upon the careful drafting of wills; we have no fear that our decision today will prevent either the full utilization of the marital deduction or the proper support of widows during the pendency of an estate proceeding.Affirmed

U.S. Supreme CourtJackson v. United States, 376 U.S. 503 (1964)Jackson v. United StatesNo. 361Argued March 4, 1964Decided March 23, 1964376 U.S. 503SyllabusFourteen months after her husband's death, a state court awarded his widow a support and maintenance allowance payable monthly for not to exceed twenty-four months from date of decedent's death. The widow survived the period, unremarried, and under state law was entitled to and did receive the payments. Deduction of all the payments on the federal estate tax return, as part of the marital deduction provided by § 812(e) of the Internal Revenue Code of 1939, was disallowed by the Commissioner of Internal Revenue. The District Court held that the widow's allowance was a "terminable interest" under § 812(e)(1)(B), and thus not deductible, and the Court of Appeals affirmed.Held:1. Since a widow' right to the allowance under the State law is defeated by her death or remarriage, her interest is terminable under § 812(e)(1)(B). Pp. 376 U. S. 503-506.2. Qualification for the marital deduction, including the widow's allowance, is determined as of time of death. Cunha's Estate v. Commissioner, 279 F.2d 292; United States v. Quivey, 292 F.2d 252, followed. Pp. 376 U. S. 507-511.317 F.2d 821, affirmed.

1982_82-411

JUSTICE STEVENS delivered the opinion of the Court.In 1978, Congress decided to overrule our decision in General Electric Co. v. Gilbert, 429 U. S. 125 (1976), by amending Title VII of the Civil Rights Act of 1964 "to prohibit sex discrimination on the basis of pregnancy." [Footnote 1] On the effective Page 462 U. S. 671 date of the Act, petitioner amended its health insurance plan to provide its female employees with hospitalization benefits for pregnancy-related conditions to the same extent as for other medical conditions. [Footnote 2] The plan continued, however, to provide less favorable pregnancy benefits for spouses of male employees. The question presented is whether the amended plan complies with the amended statute.Petitioner's plan provides hospitalization and medical-surgical coverage for a defined category of employees [Footnote 3] and a defined category of dependents. Dependents covered by the plan include employees' spouses, unmarried children between 14 days and 19 years of age, and some older dependent children. [Footnote 4] Prior to April 29, 1979, the scope of the plan's coverage for eligible dependents was identical to its coverage for employees. [Footnote 5] All covered males, whether employees or Page 462 U. S. 672 dependents, were treated alike for purposes of hospitalization coverage. All covered females, whether employees or dependents, also were treated alike. Moreover, with one relevant exception, the coverage for males and females was identical. The exception was a limitation on hospital coverage for pregnancy that did not apply to any other hospital confinement. [Footnote 6]After the plan was amended in 1979, it provided the same hospitalization coverage for male and female employees themselves for all medical conditions, but it differentiated between female employees and spouses of male employees in its provision of pregnancy-related benefits. [Footnote 7] In a booklet describing the plan, petitioner explained the amendment that gave rise to this litigation in this way:"B. Effective April 29, 1979, maternity benefits for female employees will be paid the same as any other hospital confinement as described in question 16. This applies only to deliveries beginning on April 29, 1979 and thereafter.""C. Maternity benefits for the wife of a male employee will continue to be paid as described in part 'A' of this question."App. to Pet. for Cert. 37a. Page 462 U. S. 673 In turn, Part A stated:"The Basic Plan pays up to $500 of the hospital charges and 100% of reasonable and customary for delivery and anesthesiologist charges."Ibid. As the Court of Appeals observed:"To the extent that the hospital charges in connection with an uncomplicated delivery may exceed $500, therefore, a male employee receives less complete coverage of spousal disabilities than does a female employee."667 F.2d 448, 449 (CA4 1982).After the passage of the Pregnancy Discrimination Act, and before the amendment to petitioner's plan became effective, the Equal Employment Opportunity Commission issued "interpretive guidelines" in the form of questions and answers. [Footnote 8] Two of those questions, numbers 21 and 22, made it clear that the EEOC would consider petitioner's amended plan unlawful. Number 21 read as follows:"21. Q. Must an employer provide health insurance coverage for the medical expenses of pregnancy-related conditions of the spouses of male employees? Of the dependents of all employees?""A. Where an employer provides no coverage for dependents, the employer is not required to institute such coverage. However, if an employer's insurance program covers the medical expenses of spouses of female employees, then it must equally cover the medical expenses of spouses of male employees, including those arising from pregnancy-related conditions.""But the insurance does not have to cover the pregnancy-related conditions of non-spouse dependents as long as it excludes the pregnancy-related conditions of Page 462 U. S. 674 such non-spouse dependents of male and female employees equally."44 Fed.Reg. 23807 (Apr. 20, 1979). [Footnote 9]On September 20, 1979, one of petitioner's male employees filed a charge with the EEOC alleging that petitioner had unlawfully refused to provide full insurance coverage for his wife's hospitalization caused by pregnancy; a month later, the United Steelworkers filed a similar charge on behalf of other individuals. App. 15-18. Petitioner then commenced an action in the United States District Court for the Eastern District of Virginia, challenging the Commission's guidelines and seeking both declaratory and injunctive relief. The complaint named the EEOC, the male employee, and the United Steelworkers of America as defendants. Id. at 5-14. Later, the EEOC filed a civil action against petitioner alleging discrimination on the basis of sex against male employees in the company's provision of hospitalization benefits. Id. at 28-31. Concluding that the benefits of the new Act extended only to female employees, and not to spouses of male employees, the District Court held that petitioner's plan was lawful, and enjoined enforcement of the EEOC guidelines relating to pregnancy benefits for employees' spouses. 510 Page 462 U. S. 675 F.Supp. 66 (1981). It also dismissed the EEOC's complaint. App. to Pet. for Cert. 21a. The two cases were consolidated on appeal.A divided panel of the United States Court of Appeals for the Fourth Circuit reversed, reasoning that, since"the company's health insurance plan contains a distinction based on pregnancy that results in less complete medical coverage for male employees with spouses than for female employees with spouses, it is impermissible under the statute."667 F.2d at 451. After rehearing the case en banc, the court reaffirmed the conclusion of the panel over the dissent of three judges who believed the statute was intended to protect female employees "in their ability or inability to work," and not to protect spouses of male employees. 682 F.2d 113 (1982). Because the important question presented by the case had been decided differently by the United States Court of Appeals for the Ninth Circuit, EEOC v. Lockheed Missiles & Space Co., 680 F.2d 1243 (1982), we granted certiorari. 459 U.S. 1069 (1982). [Footnote 10]Ultimately, the question we must decide is whether petitioner has discriminated against its male employees with respect to their compensation, terms, conditions, or privileges of employment because of their sex within the meaning of § 703(a)(1) of Title VII. [Footnote 11] Although the Pregnancy Discrimination Page 462 U. S. 676 Act has clarified the meaning of certain terms in this section, neither that Act nor the underlying statute contains a definition of the word "discriminate." In order to decide whether petitioner's plan discriminates against male employees because of their sex, we must therefore go beyond the bare statutory language. Accordingly, we shall consider whether Congress, by enacting the Pregnancy Discrimination Act, not only overturned the specific holding in General Electric Co. v. Gilbert, 429 U. S. 125 (1976), but also rejected the test of discrimination employed by the Court in that case. We believe it did. Under the proper test, petitioner's plan is unlawful because the protection it affords to married male employees is less comprehensive than the protection it affords to married female employees.IAt issue in General Electric Co. v. Gilbert was the legality of a disability plan that provided the company's employees with weekly compensation during periods of disability resulting from nonoccupational causes. Because the plan excluded disabilities arising from pregnancy, the District Court and the Court of Appeals concluded that it discriminated against female employees because of their sex. This Court reversed.After noting that Title VII does not define the term "discrimination," the Court applied an analysis derived from cases construing the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Id. at 429 U. S. 133. The Gilbert opinion quoted at length from a footnote in Geduldig v. Aiello, 417 U. S. 484 (1974), a case which had upheld the constitutionality of excluding pregnancy coverage under California's disability insurance plan. [Footnote 12]"Since it is a finding of Page 462 U. S. 677 sex-based discrimination that must trigger, in a case such as this, the finding of an unlawful employment practice under § 703(a)(1),"the Court added,Geduldig is precisely in point in its holding that an exclusion of pregnancy from a disability benefits plan providing general coverage is not a gender-based discrimination at all.429 U.S. at 429 U. S. 136.The dissenters in Gilbert took issue with the majority's assumption "that the Fourteenth Amendment standard of discrimination is coterminous with that applicable to Title VII." Id. at 429 U. S. 154, n. 6 (BRENNAN, J., dissenting); id. at 429 U. S. 160-161 (STEVENS, J., dissenting). [Footnote 13] As a matter of statutory interpretation, the dissenters rejected the Court's holding that the plan's exclusion of disabilities caused by pregnancy did not constitute discrimination based on sex. As JUSTICE BRENNAN explained, it was facially discriminatory for the company to devise"a policy that, but for pregnancy, offers protection for all risks, even those that are 'unique to' men or Page 462 U. S. 678 heavily male dominated."Id. at 429 U. S. 160. It was inaccurate to describe the program as dividing potential recipients into two groups, pregnant women and nonpregnant persons, because insurance programs "deal with future risks, rather than historic facts." Rather, the appropriate classification was "between persons who face a risk of pregnancy and those who do not." Id. at 429 U. S. 161-162, n. 5 (STEVENS, J., dissenting). The company's plan, which was intended to provide employees with protection against the risk of uncompensated unemployment caused by physical disability, discriminated on the basis of sex by giving men protection for all categories of risk, but giving women only partial protection. Thus, the dissenters asserted that the statute had been violated because conditions of employment for females were less favorable than for similarly situated males.When Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision. It incorporated a new subsection in the "definitions" applicable "[f]or the purposes of this subchapter." 42 U.S.C. § 2000e (1976 ed., Supp. V). The first clause of the Act states, quite simply:"The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions."§ 2000e-(k). [Footnote 14] The House Report stated: "It is the Committee's view that the dissenting Justices correctly interpreted the Act." [Footnote 15] Similarly, the Senate Report quoted passages from the two dissenting opinions, stating that they "correctly express both the principle and the meaning of title VII." [Footnote 16] Page 462 U. S. 679 Proponents of the bill repeatedly emphasized that the Supreme Court had erroneously interpreted congressional intent, and that amending legislation was necessary to reestablish the principles of Title VII law as they had been understood prior to the Gilbert decision. Many of them expressly agreed with the views of the dissenting Justices. [Footnote 17]As petitioner argues, congressional discussion focused on the needs of female members of the workforce, rather than spouses of male employees. This does not create a "negative inference" limiting the scope of the Act to the specific problem that motivated its enactment. See United States v. Page 462 U. S. 680 Turkette, 452 U. S. 576, 452 U. S. 591 (1981). Cf. McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 427 U. S. 285-296 (1976). [Footnote 18] Congress apparently assumed that existing plans that included benefits for dependents typically provided no less pregnancy-related coverage for the wives of male employees than they did for female employees. [Footnote 19] When the question of differential coverage for dependents was addressed in the Senate Report, the Committee indicated that it should be resolved "on the basis of existing title VII principles." [Footnote 20] The legislative Page 462 U. S. 681 context makes it clear that Congress was not thereby referring to the view of Title VII reflected in this Court's Gilbert opinion. Proponents of the legislation stressed throughout the debates that Congress had always intended to protect all individuals from sex discrimination in employment -- including but not limited to pregnant women workers. [Footnote 21] Against Page 462 U. S. 682 this background we review the terms of the amended statute to decide whether petitioner has unlawfully discriminated against its male employees.IISection 703(a) makes it an unlawful employment practice for an employer to"discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. . . ."42 U.S.C. § 2000e-2(a) (1). Health insurance and other fringe benefits are "compensation, terms, conditions, or privileges of employment." Male as well as female employees are protected against discrimination. Thus, if a private employer were to provide complete health insurance coverage for the dependents of its female employees, and no coverage at all for the dependents of its male employees, it would violate Title VII. [Footnote 22] Such a Page 462 U. S. 683 practice would not pass the simple test of Title VII discrimination that we enunciated in Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 435 U. S. 711 (1978), for it would treat a male employee with dependents "in a manner which, but for that person's sex, would be different.'" [Footnote 23] The same result would be reached even if the magnitude of the discrimination were smaller. For example, a plan that provided complete hospitalization coverage for the spouses of female employees but did not cover spouses of male employees when they had broken bones would violate Title VII by discriminating against male employees.Petitioner's practice is just as unlawful. Its plan provides limited pregnancy-related benefits for employees' wives, and affords more extensive coverage for employees' spouses for all other medical conditions requiring hospitalization. Thus Page 462 U. S. 684 the husbands of female employees receive a specified level of hospitalization coverage for all conditions; the wives of male employees receive such coverage except for pregnancy-related conditions. [Footnote 24] Although Gilbert concluded that an otherwise inclusive plan that singled out pregnancy-related benefits for exclusion was nondiscriminatory on its face, because only women can become pregnant, Congress has unequivocally rejected that reasoning. The 1978 Act makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions. Thus, petitioner's plan unlawfully gives married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees.There is no merit to petitioner's argument that the prohibitions of Title VII do not extend to discrimination against pregnant spouses because the statute applies only to discrimination in employment. A two-step analysis demonstrates the fallacy in this contention. The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex. And since the sex of the spouse is always the opposite of the sex of the employee, it follows inexorably that discrimination against female spouses in the provision of fringe benefits is also discrimination against male employees. Cf. Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142, 446 U. S. 147 (1980). [Footnote 25] By Page 462 U. S. 685 making clear that an employer could not discriminate on the basis of an employee's pregnancy, Congress did not erase the original prohibition against discrimination on the basis of an employee's sex.In short, Congress' rejection of the premises of General Electric Co. v. Gilbert forecloses any claim that an insurance program excluding pregnancy coverage for female beneficiaries and providing complete coverage to similarly situated male beneficiaries does not discriminate on the basis of sex. Petitioner's plan is the mirror image of the plan at issue in Gilbert. The pregnancy limitation in this case violates Title VII by discriminating against male employees. [Footnote 26]The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtNewport News Shipbuilding Co. v. EEOC, 462 U.S. 669 (1983)Newport News Shipbuilding & Dry Dock Co. v.Equal Employment Opportunity CommissionNo. 82-411Argued April 27, 1983Decided June 20, 1983462 U.S. 669SyllabusSection 703(a)(1) of Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment, because of the employee's race, color, religion, sex, or national origin. Title VII was amended in 1978 by the Pregnancy Discrimination Act to prohibit discrimination on the basis of pregnancy. Petitioner employer then amended its health insurance plan to provide its female employees with hospitalization benefits for pregnancy-related conditions to the same extent as for other medical conditions, but the plan provided less extensive pregnancy benefits for spouses of male employees. Petitioner filed an action in Federal District Court challenging the EEOC's guidelines which indicated that the amended plan was unlawful, and the EEOC in turn filed an action against petitioner alleging discrimination on the basis of sex against male employees in petitioner's provision of hospitalization benefits. The District Court upheld the lawfulness of petitioner's amended plan and dismissed the EEOC's complaint. On a consolidated appeal, the Court of Appeals reversed.Held: The pregnancy limitation in petitioner's amended health plan discriminates against male employees in violation of § 703(a)(1). Pp. 462 U. S. 676-685.(a) Congress, by enacting the Pregnancy Discrimination Act, not only overturned the holding of General Electric Co. v. Gilbert, 429 U. S. 125, that the exclusion of disabilities caused by pregnancy from an employer's disability plan providing general coverage did not constitute discrimination based on sex, but also rejected the reasoning employed in that case that differential treatment of pregnancy is not gender-based discrimination because only women can become pregnant. Pp. 462 U. S. 676-682.(b) The Pregnancy Discrimination Act makes it clear that it is discriminatory to exclude pregnancy coverage from an otherwise inclusive benefits plan. Thus, petitioner's health plan unlawfully gives married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees. Pp. 462 U. S. 682-684.(c) There is no merit to petitioner's argument that the prohibitions of Title VII do not extend to pregnant, spouses because the statute applies only to discrimination in employment. Since the Pregnancy Discrimination Page 462 U. S. 670 Act makes it clear that discrimination based on pregnancy is, on its face, discrimination based on sex, and since the spouse's sex is always the opposite of the employee's sex, discrimination against female spouses in the provision of fringe benefits is also discrimination against male employees. Pp. 462 U. S. 684-685.682 F.2d 113, affirmed.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which POWELL, J., joined, post, p. 462 U. S. 685.

1985_85-224

JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join.The issue presented in this case is whether an award of attorney's fees under 42 U.S.C. § 1988 is per se "unreasonable" within the meaning of the statute if it exceeds the amount of damages recovered by the plaintiff in the underlying civil rights action.IRespondents, eight Chicano individuals, attended a party on the evening of August 1, 1975, at the Riverside, California, home of respondents Santos and Jennie Rivera. A large number of unidentified police officers, acting without a warrant, broke up the party using tear gas and, as found by the District Court, "unnecessary physical force." Many of the guests, including four of the respondents, were arrested. The District Court later found that "[t]he party was not creating a disturbance in the community at the time of the break-in." App. 188. Criminal charges against the arrestees were ultimately dismissed for lack of probable cause.On June 4, 1976, respondents sued the city of Riverside, its Chief of Police, and 30 individual police officers under 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986 for allegedly violating their First, Fourth, and Fourteenth Amendment rights. The complaint, which also alleged numerous state law claims, sought damages and declaratory and injunctive relief. On August 5, 1977, 23 of the individual police officers moved for summary judgment; the District Court granted summary judgment in favor of 17 of these officers. The case against the remaining defendants proceeded to trial in September, 1980. The jury returned a total of 37 individual verdicts in favor of the respondents and against the city and five individual officers, finding 11 violations of § 1983, 4 instances of false arrest and imprisonment, and 22 instances of negligence. Respondents were awarded $33,350 in compensatory and punitive Page 477 U. S. 565 damages: $13,300 for their federal claims, and $20,050 for their state law claims. [Footnote 1]Respondents also sought attorney's fees and costs under § 1988. They requested compensation for 1,946.75 hours expended by their two attorneys at a rate of $125 per hour, and for 84.5 hours expended by law clerks at a rate of $25 per hour, a total of $245,456.25. The District Court found both the hours and rates reasonable, and awarded respondents $245,456.25 in attorney's fees. The court rejected respondents' request for certain additional expenses, and for a multiplier sought by respondents to reflect the contingent nature of their success and the high quality of their attorneys' efforts.Petitioners appealed only the attorney's fees award, which the Court of Appeals for the Ninth Circuit affirmed. Rivera v. City of Riverside, 679 F.2d 795 (1982). Petitioners sought a writ of certiorari from this Court. We granted the writ, vacated the Court of Appeals' judgment, and remanded the case for reconsideration in light of Hensley v. Eckerhart, 461 U. S. 424 (1983). 461 U.S. 952 (1983). On remand, the District Court held two additional hearings, reviewed additional briefing, and reexamined the record as a whole. The court made extensive findings of fact and conclusions of law, and again concluded that respondents were entitled to an Page 477 U. S. 566 award of $245,456.25 in attorney's fees, based on the same total number of hours expended on the case and the same hourly rates. [Footnote 2] The court again denied respondents' request for certain expenses and for a multiplier.Petitioners again appealed the fee award. And again, the Court of Appeals affirmed, finding that "the district court correctly reconsidered the case in light of Hensley. . . ." 763 F.2d 1580, 1582 (1985). The Court of Appeals rejected three arguments raised by petitioners. First, the court rejected petitioners' contention that respondents' counsel should not have been compensated for time spent litigating claims other than those upon which respondents ultimately prevailed. Emphasizing that the District Court had determined that respondents' attorneys had "spent no time on claims unrelated to the successful claims," ibid., the Court of Appeals concluded that"[t]he record supports the district court's findings that all of the plaintiffs' claims involve a 'common core of facts,' and that the claims involve related legal theories."Ibid. The court also observed that, consistent with Hensley, the District Court had"considered the degree of success [achieved by respondents' attorneys] and found a reasonable relationship between the extent of that success and the amount of the fee award."763 F.2d at 1582. Second, the Court of Appeals rejected the argument that the fee award was excessive because it exceeded the amount of damages awarded by the jury. Examining the legislative history of § 1988, the court found no support for the proposition that an award of attorney's fees may not exceed the amount of damages recovered by a prevailing plaintiff. Finally, the Page 477 U. S. 567 court found that the District Court's "extensive findings of fact and conclusions of law" belied petitioners' claim that the District Court had not reviewed the record to determine whether the fee award was justified. The Court of Appeals concluded:"In short, the district court applied the necessary criteria to justify the attorney's fees awarded, and explained the reasons for the award clearly and concisely. As required by Hensley, the district court adequately discussed the extent of the plaintiffs' success and its relationship to the amount of the attorney's fees awarded. The award is well within the discretion of the district court."Id. at 1583 (citation omitted).Petitioners again sought a writ of certiorari from this Court, alleging that the District Court's fee award was not "reasonable" within the meaning of § 1988, because it was disproportionate to the amount of damages recovered by respondents. We granted the writ, 474 U.S. 917 (1985), and now affirm the Court of Appeals.IIAIn Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975), the Court reaffirmed the "American Rule" that, at least absent express statutory authorization to the contrary, each party to a lawsuit ordinarily shall bear its own attorney's fees. In response to Alyeska, Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, which authorized the district courts to award reasonable attorney's fees to prevailing parties in specified civil rights litigation. While the statute itself does not explain what constitutes a reasonable fee, both the House and Senate Reports accompanying § 1988 expressly endorse the analysis set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974). See S.Rep. No. 94-1011, p. 6 (1976) (hereafter Senate Report); H.R. Page 477 U. S. 568 Rep. No. 94-1558, p. 8 (1976) (hereafter House Report). Johnson identifies 12 factors to be considered in calculating a reasonable attorney's fee. [Footnote 3]Hensley v. Eckerhart, supra, announced certain guidelines for calculating a reasonable attorney's fee under § 1988. Hensley stated that"[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."Id. at 461 U. S. 433. This figure, commonly referred to as the "lodestar," is presumed to be the reasonable fee contemplated by § 1988. The opinion cautioned that "[t]he district court . . . should exclude from this initial fee calculation hours that were not reasonably expended'" on the litigation. Id. at 461 U. S. 434 (quoting Senate Report at 6).Hensley then discussed other considerations that might lead the district court to adjust the lodestar figure upward or downward, including the "important factor of the results obtained.'" 461 U.S. at 461 U. S. 434. The opinion noted that where a prevailing plaintiff has succeeded on only some of his claims, an award of fees for time expended on unsuccessful claims may not be appropriate. In these situations, the Court held that the judge should consider whether or not the plaintiff's unsuccessful claims were related to the claims on which he succeeded, and whether the plaintiff achieved a level of success that makes it appropriate to award attorney's fees for hours reasonably expended on unsuccessful claims: Page 477 U. S. 569"In [some] cases, the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation."Id. at 461 U. S. 435. Accordingly, Hensley emphasized that "[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee," and that "the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." Ibid.BPetitioners argue that the District Court failed properly to follow Hensley in calculating respondents' fee award. We disagree. The District Court carefully considered the results obtained by respondents pursuant to the instructions set forth in Hensley, and concluded that respondents were entitled to recover attorney's fees for all hours expended on the litigation. First, the court found that"[t]he amount of time expended by counsel in conducting this litigation was reasonable and reflected sound legal judgment under the circumstances."App. 190. [Footnote 4] The court also determined that Page 477 U. S. 570 counsel's excellent performances in this case entitled them to be compensated at prevailing market rates, even though they were relatively young when this litigation began. See Johnson, 488 F.2d at 718-719 ("If a young attorney demonstrates the skill and ability, he should not be penalized for only recently being admitted to the bar").The District Court then concluded that it was inappropriate to adjust respondents' fee award downward to account for the fact that respondents had prevailed only on some of their claims, and against only some of the defendants. The court first determined that "it was never actually clear what officer did what until we had gotten through with the whole trial," App. 236, so that,"[u]nder the circumstances of this case, it was reasonable for plaintiffs initially to name thirty-one individual defendants . . . as well as the City of Riverside as defendants in this action."Id. at 188. The court remarked:"I think every one of the claims that were made were related, and if you look at the common core of facts that we had here, that you had total success. . . . There was a problem about who was responsible for what, and that problem was there all the way through to the time that we concluded the case. Some of the officers couldn't agree about who did what, and it is not at all surprising that it would, in my opinion, have been wrong for you Page 477 U. S. 571 not to join all those officers, since you yourself did not know precisely who were the officers that were responsible."Id. at 235-236.The court then found that the lawsuit could not "be viewed as a series of discrete claims," Hensley, 461 U.S. at 461 U. S. 435:"All claims made by plaintiffs were based on a common core of facts. The claims on which plaintiffs did not prevail were closely related to the claims on which they did prevail. The time devoted to claims on which plaintiffs did not prevail cannot reasonably be separated from time devoted to claims on which plaintiffs did prevail."App. 189.The District Court also considered the amount of damages recovered, and determined that the size of the damages award did not imply that respondents' success was limited:"[T]he size of the jury award resulted from (a) the general reluctance of jurors to make large awards against police officers, and (b) the dignified restraint which the plaintiffs exercised in describing their injuries to the jury. For example, although some of the actions of the police would clearly have been insulting and humiliating to even the most insensitive person and were, in the opinion of the Court, intentionally so, plaintiffs did not attempt to play up this aspect of the case."Id. at 188-189. [Footnote 5] The court paid particular attention to the fact that the case "presented complex and interrelated issues of fact and law," Page 477 U. S. 572 id. at 187, and that "[a] fee award in this civil rights action will . . . advance the public interest," id. at 191:"Counsel for plaintiffs . . . served the public interest by vindicating important constitutional rights. Defendants had engaged in lawless, unconstitutional conduct, and the litigation of plaintiffs' case was necessary to remedy defendants' misconduct. Indeed, the Court was shocked at some of the acts of the police officers in this case, and was convinced from the testimony that these acts were motivated by a general hostility to the Chicano community in the area where the incident occurred. The amount of time expended by plaintiffs' counsel in conducting this litigation was clearly reasonable and necessary to serve the public interest as well as the interests of plaintiffs in the vindication of their constitutional rights."Id. at 190. Finally, the District Court "focus[ed] on the significance of the overall relief obtained by [respondents] in relation to the hours reasonably expended on the litigation." Hensley, supra, at 461 U. S. 435. The court concluded that respondents had "achieved a level of success in this case that makes the total number of hours expended by counsel a proper basis for making the fee award," App.192:"Counsel for plaintiffs achieved excellent results for their clients, and their accomplishment in this case was outstanding. The amount of time expended by counsel in conducting this litigation was reasonable, and reflected sound legal judgment under the circumstances."Id. at 190.Based on our review of the record, we agree with the Court of Appeals that the District Court's findings were not clearly erroneous. We conclude that the District Court correctly applied the factors announced in Hensley in calculating respondents' fee award, and that the court did not abuse its Page 477 U. S. 573 discretion in awarding attorney's fees for all time reasonably spent litigating the case. [Footnote 6]IIIPetitioners, joined by the United States as amicus curiae, maintain that Hensley's lodestar approach is inappropriate in civil rights cases where a plaintiff recovers only monetary damages. In these cases, so the argument goes, use of the lodestar may result in fees that exceed the amount of damages recovered, and that are therefore unreasonable. Likening such cases to private tort actions, petitioners and the United States submit that attorney's fees in such cases should be proportionate to the amount of damages a plaintiff recovers. Specifically, they suggest that fee awards in damages cases should be modeled upon the contingent fee arrangements commonly used in personal injury litigation. In this case, assuming a 33% contingency rate, this would entitle Page 477 U. S. 574 respondents to recover approximately $11,000 in attorney's fees.The amount of damages a plaintiff recovers is certainly relevant to the amount of attorney's fees to be awarded under § 1988. See Johnson, 488 F.2d at 718. It is, however, only one of many factors that a court should consider in calculating an award of attorney's fees. We reject the proposition that fee awards under § 1988 should necessarily be proportionate to the amount of damages a civil rights plaintiff actually recovers.AAs an initial matter, we reject the notion that a civil rights action for damages constitutes nothing more than a private tort suit benefiting only the individual plaintiffs whose rights were violated. Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms. See Carey v. Piphus, 435 U. S. 247, 435 U. S. 266 (1978). And Congress has determined that"the public as a whole has an interest in the vindication of the rights conferred by the statutes enumerated in § 1988, over and above the value of a civil rights remedy to a particular plaintiff. . . ."Hensley, 461 U.S. at 461 U. S. 444, n. 4 (BRENNAN, J., concurring in part and dissenting in part). Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damages awards. In this case, for example, the District Court found that many of petitioners' unlawful acts were "motivated by a general hostility to the Chicano community," App. 190, and that this litigation therefore served the public interest:"The institutional behavior involved here . . . had to be stopped, and . . . nothing short of having a lawsuit like this would have stopped it. . . . [T]he improper motivation which appeared as a result of all of this seemed to Page 477 U. S. 575 me to have pervaded a very broad segment of police officers in the department."Id. at 237. [Footnote 7] In addition, the damages a plaintiff recovers contributes significantly to the deterrence of civil rights violations in the future. See McCann v. Coughlin, 698 F.2d 112, 129 (CA2 1983). This deterrent effect is particularly evident in the area of individual police misconduct, where injunctive relief generally is unavailable.Congress expressly recognized that a plaintiff who obtains relief in a civil rights lawsuit"'does so not for himself alone, but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest importance.'"House Report at 2 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 390 U. S. 402 (1968))."If the citizen does not have the resources, his day in court is denied him; the congressional policy which he seeks to assert and vindicate goes unvindicated; and the entire Nation, not just the individual citizen, suffers."122 Cong.Rec. 33313 (1976) (remarks of Sen. Tunney).Because damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on obtaining substantial monetary relief. Rather, Congress made clear that it"intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases, and not be reduced because the rights involved may be nonpecuniary in nature."Senate Report at 6 (emphasis added)."[C]ounsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, 'for all time reasonably expended on a matter.'"Ibid. (quoting Van Davis Page 477 U. S. 576 v. County of Los Angeles, 8 EPD � 9444 (CD Cal.1974) (emphasis added)). The Senate Report specifically approves of the fee awards made in cases such as Stanford Daily v. Zurcher, 64 F.R.D. 680 (ND Cal.1974); Van Davis v. County of Los Angeles, supra; and Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483 (WDNC 1975). In each of these cases, counsel received substantial attorney's fees despite the fact the plaintiffs sought no monetary damages. Thus, Congress recognized that reasonable attorney's fees under § 1988 are not conditioned upon, and need not be proportionate to, an award of money damages. The lower courts have generally eschewed such a requirement. [Footnote 8]BA rule that limits attorney's fees in civil rights cases to a proportion of the damages awarded would seriously undermine Congress' purpose in enacting § 1988. Congress enacted § 1988 specifically because it found that the private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process. See House Report at 3. These victims ordinarily cannot afford to purchase legal services at the rates set by the private market. See id. at 1 ("Because a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts"); Senate Report at 2 ("In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer"); see Page 477 U. S. 577 also 122 Cong.Rec. 35127 (1976) (remarks of Rep. Holtzman) ("Plaintiffs who suffer discrimination and other infringements of their civil rights are usually not wealthy people"); id. at 35128 (remarks of Rep. Seiberling) ("Most Americans . . . cannot afford to hire a lawyer if their constitutional rights are violated or if they are the victims of illegal discrimination"); id. at 31832 (remarks of Sen. Hathaway) ("[R]ight now, the vindication of important congressional policies in the vital area of civil rights is made to depend upon the financial resources of those least able to promote them"). Moreover, the contingent fee arrangements that make legal services available to many victims of personal injuries would often not encourage lawyers to accept civil rights cases, which frequently involve substantial expenditures of time and effort, but produce only small monetary recoveries. As the House Report states:"[W]hile damages are theoretically available under the statutes covered by [§ 1988], it should be observed that, in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy. Consequently, awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil and constitutional rights are to be adequately protected."House Report at 9. (emphasis added; footnote omitted). See also 122 Cong.Rec. at 33314 (remarks of Sen. Kennedy) ("[C]ivil rights cases -- unlike tort or antitrust cases -- do not provide the prevailing plaintiff with a large recovery from which he can pay his lawyer"). Congress enacted § 1988 specifically to enable plaintiffs to enforce the civil rights laws even where the amount of damages at stake would not otherwise make it feasible for them to do so:"[F]ee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate Page 477 U. S. 578 the important Congressional policies which these laws contain."". . . If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court."Senate Report at 2. See also Kerr v. Quinn, 692 F.2d 875, 877 (CA2 1982) ("The function of an award of attorney's fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel").A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts. This is totally inconsistent with Congress' purpose in enacting § 1988. Congress recognized that private sector fee arrangements were inadequate to ensure sufficiently vigorous enforcement of civil rights. In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case. [Footnote 9] Page 477 U. S. 579This case illustrates why the enforcement of civil rights laws cannot be entrusted to private sector fee arrangements. The District Court observed that,"[g]iven the nature of this lawsuit and the type of defense presented, many attorneys in the community would have been reluctant to institute and to continue to prosecute this action."App. 189. The court concluded, moreover, that"[c]ounsel for plaintiffs achieved excellent results for their clients, and their accomplishment in this case was outstanding. The amount of time expended by counsel in conducting this litigation was reasonable, and reflected sound legal judgment under the circumstances."Id. at 190. Nevertheless, petitioners suggest that respondents' counsel should be compensated for only a small fraction of the actual time spent litigating the case. In light of the difficult nature of the issues presented by this lawsuit and the low pecuniary value of many of the rights respondents sought to vindicate, it is highly unlikely that the prospect of a fee equal to a fraction of the damages respondents might recover would have been sufficient to attract competent counsel. [Footnote 10] Moreover, since counsel might not have found it economically feasible to expend the amount of time respondents' counsel found necessary to litigate the case properly, it is even less likely that counsel would have achieved the excellent results that respondents' counsel obtained here. Thus, had respondents had to rely on private sector fee arrangements, they might well have been unable to obtain redress for their Page 477 U. S. 580 grievances. It is precisely for this reason that Congress enacted § 1988.IVWe agree with petitioners that Congress intended that statutory fee awards be "adequate to attract competent counsel, but . . . not produce windfalls to attorneys." Senate Report at 6. However, we find no evidence that Congress intended that, in order to avoid "windfalls to attorneys," attorney's fees be proportionate to the amount of damages a civil rights plaintiff might recover. Rather, there already exists a wide range of safeguards designed to protect civil rights defendants against the possibility of excessive fee awards. Both the House and Senate Reports identify standards for courts to follow in awarding and calculating attorney's fees, see ibid.; House Report at 8; these standards are designed to ensure that attorneys are compensated only for time reasonably expended on a case. The district court has the discretion to deny fees to prevailing plaintiffs under special circumstances, see Hensley, 461 U.S. at 461 U. S. 429 (citing Senate Report at 4), and to award attorney's fees against plaintiffs who litigate frivolous or vexatious claims. See Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 434 U. S. 416-417 (1978); Hughes v. Rowe, 449 U. S. 5, 449 U. S. 14-16 (1980) (per curiam); House Report at 6-7. Furthermore, we have held that a civil rights defendant is not liable for attorney's fees incurred after a pretrial settlement offer, where the judgment recovered by the plaintiff is less than the offer. Marek v. Chesny, 473 U. S. 1 (1985). [Footnote 11] We believe that Page 477 U. S. 581 these safeguards adequately protect against the possibility that § 1988 might produce a "windfall" to civil rights attorneys.In the absence of any indication that Congress intended to adopt a strict rule that attorney's fees under § 1988 be proportionate to damages recovered, we decline to adopt such a rule ourselves. [Footnote 12] The judgment of the Court of Appeals is herebyAffirmed

U.S. Supreme CourtCity of Riverside v. Rivera, 477 U.S. 561 (1986)City of Riverside v. RiveraNo. 85-224Argued March 31, 1986Decided June 27, 1986477 U.S. 561SyllabusRespondents, eight Chicano individuals, attended a party at the home of two of the respondents. A large number of officers of petitioner city's police force, acting without a warrant, broke up the party by using tear gas and unnecessary physical force, and many of the guests, including four of the respondents, were arrested. Criminal charges were ultimately dismissed. Respondents filed suit in Federal District Court against the city, its Chief of Police, and 30 individual police officers under various federal Civil Rights Acts, alleging violations of respondents' First, Fourth, and Fourteenth Amendment rights, as well as numerous state law claims. Ultimately the jury returned 37 individual verdicts in favor of respondents and against the city and five individual officers, finding 11 violations of 42 U.S.C. § 1983, 4 instances of false arrest and imprisonment, and 22 instances of negligence. Respondents were awarded $33,350 in compensatory and punitive damages. They also sought attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, in the amount of $ 245,456.25, based on 1,946.75 hours expended by their two attorneys at $125 per hour and 84.5 hours expended by law clerks at $25 per hour. Finding both the hours and rates reasonable, the District Court awarded respondents the requested amount, and the Court of Appeals affirmed. This Court remanded for reconsideration in light of the intervening decision in Hensley v. Eckerhart, 461 U. S. 424, and the District Court, after additional hearings and review of the matter, made extensive findings of fact and conclusions of law, and again concluded that respondents were entitled to an award of the requested amount of attorney's fees. The Court of Appeals again affirmed, ruling, inter alia, that the fee award was not excessive merely because it exceeded the amount of damages awarded by the jury.Held: The judgment is affirmed.763 F.2d 1580, affirmed.JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS, concluded that:1. Under Hensley v. Eckerhart, supra, which announced certain guidelines for calculating a "reasonable" attorney's fee under § 1988, the "lodestar" figure, obtained by multiplying the number of hours reasonably Page 477 U. S. 562 expended on the litigation by a reasonable hourly rate, is presumed to be the reasonable fee contemplated by § 1988, and an important factor, among others, for consideration in adjusting the lodestar figure upward or downward is the "results obtained." Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee, and the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. The record here establishes that the District Court correctly applied the factors announced in Hensley, and did not abuse its discretion in awarding attorney's fees for all time reasonably spent litigating the case. Pp. 477 U. S. 567-573.2. There is no merit to the argument that Hensley's lodestar approach is inappropriate in civil rights cases where a plaintiff recovers only monetary damages, and that, in such cases, fees in excess of the amount of damages recovered are necessarily unreasonable. Although the amount of damages recovered is relevant to the amount of attorney's fees to be awarded under § 1988, it is only one of many factors that a court should consider in calculating an award of attorney's fees. Pp. 477 U. S. 573-580.(a) A civil rights action for damages does not constitute merely a private tort suit benefiting only the individual plaintiffs whose rights were violated. Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms. Because damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on obtaining substantial monetary relief, but instead recognized that reasonable attorney's fees under § 1988 are not conditioned upon, and need not be proportionate to, an award of money damages. Pp. 477 U. S. 574-576.(b) A rule limiting attorney's fees in civil rights cases to a proportion of the damages awarded would seriously undermine Congress' purpose in enacting § 1988. Congress enacted § 1988 specifically because it found that the private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process. A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts, and would be totally inconsistent with Congress' purpose of ensuring sufficiently vigorous enforcement of civil rights. In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case. Pp. 477 U. S. 576-580.3. Although Congress did not intend that statutory fee awards produce "windfalls" to attorneys, neither did it intend that attorney's fees be proportionate to the amount of damages a civil rights plaintiff Page 477 U. S. 563 might recover. Rather, there already exists a wide range of safeguards that are designed to protect civil rights defendants against the possibility of excessive fee awards, and that adequately protect against the possibility that § 1988 might produce a "windfall" to civil rights attorneys. Pp. 477 U. S. 580-581.JUSTICE POWELL concluded that the District Court's detailed findings concerning the fee award, which were accepted by the Court of Appeals, were not "clearly erroneous" for purposes of Federal Rule of Civil Procedure 52(a), and that the District Court did not abuse its discretion in making the fee award. JUSTICE POWELL also concluded that neither the decisions of this Court nor the legislative history of § 1988 support a rule of proportionality between fees awarded and damages recovered in a civil rights case, and rejected the argument that the prevailing contingent fee rate charged by counsel in personal injury cases should be considered the reasonable fee for purposes of § 1988. Pp. 477 U. S. 581-586.BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 477 U. S. 581. BURGER, C.J., filed a dissenting opinion, post, p. 477 U. S. 587. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and WHITE and O'CONNOR, JJ., joined, post, p. 477 U. S. 588. Page 477 U. S. 564

1990_90-96

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.We granted certiorari in this case to determine whether the United States Court of Appeals for the District of Columbia Circuit properly directed dismissal of petitioner's Bivens claim on the grounds that he had not overcome respondent's claim of qualified immunity. The Court of Appeals relied on its "heightened pleading standard," but we hold that petitioner's claim failed at an analytically earlier stage of the inquiry into qualified immunity: his allegations, even if accepted as true, did not state a claim for violation of any rights secured to him under the United States Constitution.Petitioner Frederick A. Siegert, a clinical psychologist, was employed at St. Elizabeth's Hospital, a Federal Government facility in Washington, D.C. from November, 1979, to October, 1985. He was a behavior therapy coordinator specializing in work with mentally retarded children and, to a lesser extent, with adults. In January, 1985, respondent H. Page 500 U. S. 228 Melvin Gilley became head of the division for which Siegert worked.In August, 1985, St. Elizabeth's notified Siegert that it was preparing to terminate his employment. Siegert was informed that his"proposed removal was based upon his inability to report for duty in a dependable and reliable manner, his failure to comply with supervisory directives, and cumulative charges of absence without approved leave."App. 15, 21. After meeting with hospital officials, Siegert agreed to resign from the hospital, and thereby avoid a termination that might damage his reputation. Id. at 21.Following his resignation from St. Elizabeth's, Siegert began working as a clinical psychologist at a United States Army Hospital in Bremerhaven, West Germany. Because of the requirement that he be "credentialed" to work in hospitals operated by the Army, Siegert signed a "Credential Information Request Form" asking that St. Elizabeth's Hospital provide to his prospective supervisor, Colonel William Smith, "all information on job performance and the privileges" he had enjoyed while a member of its staff. Siegert's request was referred to Gilley because he had been Siegert's supervisor at St. Elizabeth's.In response to Siegert's request, Gilley notified the Army by letter that "he could not recommend [Siegert] for privileges as a psychologist." Id. at 6. In that letter, Gilley wrote that he"consider[ed] Dr. Siegert to be both inept and unethical, perhaps the least trustworthy individual I have supervised in my thirteen years at [St. Elizabeth's]."Ibid. After receiving this letter, the Army Credentials Committee told Siegert that, since "reports about him were extremely unfavorable' . . . , the committee was . . . recommending that [Siegert] not be credentialed."Id. at 7.After being denied credentials by the Committee, Siegert was turned down for a position he sought with an Army hospital in Stuttgart. Siegert then returned to Bremerhaven where he was given provisional credentials, limited to his Page 500 U. S. 229 work with adults. Siegert filed administrative appeals with the Office of the Surgeon General to obtain full credentials. In December, 1987, the Surgeon General denied Siegert's claims. Soon thereafter, his "federal service employment [was] terminated." Id. at 23.Upon learning of Gilley's letter in November, 1986, Siegert filed suit in the United States District Court for the District of Columbia, alleging that Gilley's letter had caused him to lose his post as a psychologist at the Bremerhaven Army Hospital, and had rendered him unable to obtain other appropriate employment in the field. Relying on Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), Siegert sought $4 million in damages against Gilley, contending that --"by maliciously and in bad faith publishing a defamatory per se statement . . . which [he] knew to be untrue, or with reckless disregard as to whether it was true or not,"-- Gilley had caused an infringement of his "liberty interests" in violation of the protections afforded by the Due Process Clause of the Fifth Amendment. App. 9. Siegert also asserted pendent state law claims of defamation, intentional infliction of emotional distress, and interference with contractual relations.Gilley filed a motion to dismiss or, in the alternative, for summary judgment. He contended that Siegert's factual allegations, even if true, did not make out a violation of any constitutional right. Gilley also asserted the defense of qualified immunity under Harlow v. Fitzgerald, 457 U. S. 800 (1982), contending that Siegert's allegations did not state the violation of any "clearly established" constitutional right. App. to Pet. for Cert. 30a-31a, 36a. Siegert submitted opposing affidavits stating facts supporting his allegations of malice.In December, 1987, the District Court issued an order "[declining] to decide this matter on a Summary Judgment motion at this time." Id. at 54a. Instead, the court determined that "[it] would like to see a more developed record," Page 500 U. S. 230 and therefore ordered "a limited amount of discovery." Ibid. In particular, the court directed the taking of the depositions of the parties and Colonel Smith.Gilley filed a motion for reconsideration, asking the court to stay further discovery pending disposition of his qualified immunity claim. In June, 1988, the District Court denied the motion, and, in a written opinion, found that Siegert's factual allegations were sufficient to state violations of a clearly established constitutional right. It analyzed our decision in Paul v. Davis, 424 U. S. 693 (1976), but found this case closer on its facts to two decisions of the Court of Appeals for the District of Columbia Circuit, Doe v. United States Department of Justice, 243 U.S.App.D.C. 354, 753 F.2d 1092 (1985), and Bartel v. FAA, 233 U.S.App.D.C. 297, 725 F.2d 1403 (1985). The court directed the parties to proceed with the previously ordered limited discovery. Gilley appealed the denial of his qualified immunity defense to the Court of Appeals pursuant to Mitchell v. Forsyth, 472 U. S. 511 (1985).A divided panel of the United States Court of Appeals for the District of Columbia Circuit reversed and remanded with instructions that the case be dismissed. The court first determined that, to the extent Siegert's Bivens action was premised on allegations of improper conduct irrespective of subjective intent, the allegations did not state a claim for violation of any clearly established constitutional right. In the course of that analysis, it concluded that the District Court had mistakenly relied on its decisions in Doe, supra, and Bartel, supra.The Court of Appeals then turned to Siegert's allegation that Gilley wrote the letter with bad faith and malice. Assuming "that such bad faith motivation would suffice to make Gilley's actions in writing the letter a violation of Siegert's [clearly established] constitutional rights," 282 U.S.App.D.C. 392, 398, 895 F.2d 797, 803 (1990), the court held that Siegert's allegations of improper motivation were insufficient Page 500 U. S. 231 to overcome Gilley's assertion of qualified immunity. The court explained that where, as here, improper purpose is an essential element of a constitutional tort action, the plaintiff must adequately allege specific, direct evidence of illicit intent -- as opposed to merely circumstantial evidence of bad intent -- in order to defeat the defendant's motion to dismiss or motion for summary judgment asserting qualified immunity. Id. at 395-396, 398-399, 895 F.2d at 800-801, 803-804a.The Court of Appeals then determined that Siegert's allegations did not satisfy that "heightened pleading standard." Id. at 400, 895 F.2d at 805. It found that Siegert's complaint "merely asserts (and reasserts) that in making the statement [Gilley] knew [it] to be false or [made it] with reckless disregard as to whether it was true,'" Id. at 398, 895 F.2d at 803 (citation omitted), and that Siegert's affidavits failed "to add anything more tangible to the record. . . ." Ibid.We granted certiorari, 498 U.S. 918 (1990), in order to clarify the analytical structure under which a claim of qualified immunity should be addressed. We hold that the petitioner in this case failed to satisfy the first inquiry in the examination of such a claim; he failed to allege the violation of a clearly established constitutional right.We have on several occasions addressed the proper analytical framework for determining whether a plaintiff's allegations are sufficient to overcome a defendant's defense of qualified immunity asserted in a motion for summary judgment. Qualified immunity is a defense that must be pleaded by a defendant official. Gomez v. Toledo, 446 U. S. 635 (1980); Harlow, 457 U.S. at 457 U. S. 815. Once a defendant pleads a defense of qualified immunity,"[o]n summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. . . . Until this threshold immunity question is resolved, discovery should not be allowed."Id. at 457 U. S. 818. Page 500 U. S. 232In this case, Siegert based his constitutional claim on the theory that Gilley's actions, undertaken with malice, deprived him of a "liberty interest" secured by the Fifth Amendment to the United States Constitution. He contended that the loss of his position at the Bremerhaven Hospital, followed by the refusal of the Army hospital in Stuttgart to consider his application for employment, and his general inability to find comparable work because of Gilley's letter, constituted such a deprivation. The Court of Appeals agreed with respondent that, in the absence of an allegation of malice, petitioner had stated no constitutional claim. But it then went on to"assume[] without deciding, that [Gilley's] bad faith motivation would suffice to make [his] actions in writing the letter a violation of Siegert's constitutional rights, and that the process given by the credentialing review was not adequate to meet due process requirements."282 U.S.App.D.C. at 398, 895 F.2d at 803. We think the Court of Appeals should not have assumed without deciding this preliminary issue in this case, and proceeded to examine the sufficiency of the allegations of malice.In Harlow, we said that "[u]ntil this threshold immunity question is resolved, discovery should not be allowed." Harlow, supra, at 457 U. S. 818 (emphasis added). 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. Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time-consuming preparation to defend the suit on its merits. One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit. In Mitchell v. Forsyth, supra, we said: Page 500 U. S. 233"Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit, rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial."Id. at 472 U. S. 526.This case demonstrates the desirability of this approach to a claim of immunity, for Siegert not only failed to allege the violation of a constitutional right that was clearly established at the time of Gilley's actions, but he failed to establish the violation of any constitutional right at all.In Paul v. Davis, the plaintiff's photograph was included by local police chiefs in a "flyer" of "active shoplifters," after petitioner had been arrested for shoplifting. The shoplifting charge was eventually dismissed, and the plaintiff filed suit under 42 U.S.C. § 1983 against the police chiefs, alleging that the officials' actions inflicted a stigma to his reputation that would seriously impair his future employment opportunities, and thus deprived him under color of state law of liberty interests protected by the Fourteenth Amendment.We rejected the plaintiff's claim, holding that injury to reputation by itself was not a "liberty" interest protected under the Fourteenth Amendment. 424 U.S. at 424 U. S. 708-709. We pointed out that our reference to a governmental employer stigmatizing an employee in Board of Regents of State Colleges v. Roth, 408 U. S. 564 (1972), was made in the context of the employer discharging or failing to rehire a plaintiff who claimed a liberty interest under the Fourteenth Amendment. Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation.The facts alleged by Siegert cannot, in the light of our decision in Paul v. Davis, be held to state a claim for denial of a Page 500 U. S. 234 constitutional right. This is not a suit against the United States under the Federal Tort Claims Act -- such a suit could not be brought, in the light of the exemption in that act for claims based on defamation, see 28 U.S.C. § 2680(h) -- but a suit against Siegert's superior at St. Elizabeth's hospital. The alleged defamation was not uttered incident to the termination of Siegert's employment by the hospital, since he voluntarily resigned from his position at the hospital, and the letter was written several weeks later. The statements contained in the letter would undoubtedly damage the reputation of one in his position, and impair his future employment prospects. But the plaintiff in Paul v. Davis similarly alleged serious impairment of his future employment opportunities, as well as other harm. Most defamation plaintiffs attempt to show some sort of special damage and out-of-pocket loss which flows from the injury to their reputation. But so long as such damage flows from injury caused by the defendant to a plaintiff's reputation, it may be recoverable under state tort law, but it is not recoverable in a Bivens action. Siegert did assert a claim for defamation in this case, but made no allegations as to diversity of citizenship between himself and respondent.The Court of Appeals assumed, without deciding, that, if petitioner satisfactorily alleged that respondent's letter was written with malice, a constitutional claim would be stated. Siegert, in this Court, asserts that this assumption was correct -- that, if the defendant acted with malice in defaming him, what he describes as the "stigma plus" test of Paul v. Davis is met. Our decision in Paul v. Davis did not turn, however, on the state of mind of the defendant, but on the lack of any constitutional protection for the interest in reputation.The Court of Appeals' majority concluded that the District Court should have dismissed petitioner's suit because he had not overcome the defense of qualified immunity asserted by respondent. By a different line of reasoning, we reach the Page 500 U. S. 235 same conclusion, and the judgment of the Court of Appeals is thereforeAffirmed

U.S. Supreme CourtSiegert v. Gilley, 500 U.S. 226 (1991)Siegert v. GilleyNo. 90-96Argued Feb. 19, 1991Decided May 23, 1991500 U.S. 226SyllabusIn seeking to become "credentialed" in his new job at an Army hospital, petitioner Siegert, a clinical psychologist, asked his former employer, a federal hospital, to provide job performance and other information to his new employer. Respondent Gilley, Siegert's supervisor at his former job, responded with a letter declaring that he could not recommend Siegert because he was inept, unethical, and untrustworthy. After he was denied credentials and his federal service employment was terminated, Siegert filed a damages action against Gilley in the District Court, alleging, inter alia, that, under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, Gilley had caused an infringement of his "liberty interests" in violation of the Due Process Clause of the Fifth Amendment "by maliciously and in bad faith publishing a defamatory per se statement . . . which [he] knew to be untrue." Gilley filed a motion to dismiss or for summary judgment, asserting, among other things, the defense of qualified immunity under Harlow v. Fitzgerald, 457 U. S. 800, and contending that Siegert's factual allegations did not state the violation of any constitutional right "clearly established" at the time of the complained-of actions, see id. at 457 U. S. 818. The court ultimately found Siegert's allegations to be sufficient, but the Court of Appeals reversed and remanded with instructions that the case be dismissed. Although assuming that bad-faith motivation would suffice to make Gilley's actions in writing the letter a violation of Siegert's clearly established constitutional rights, the court held that Siegert's particular allegations were insufficient under its "heightened pleading standard" to overcome Gilley's qualified immunity claim.Held: The Court of Appeals properly concluded that the District Court should have dismissed Siegert's suit because he had not overcome Gilley's qualified immunity defense. Siegert failed to allege the violation of a clearly established constitutional right -- indeed, of any constitutional right at all -- since, under Paul v. Davis, 424 U. S. 693, 424 U. S. 708-709, injury to reputation, by itself, is not a protected "liberty" interest. He therefore failed to satisfy the necessary threshold inquiry in the determination of a qualified immunity claim. See, e.g., Harlow, supra, at 457 U. S. 818. Thus, although the Court of Appeals reached the correct result, it should not have assumed without deciding the necessary preliminary Page 500 U. S. 227 issue and then proceeded to examine the sufficiency of Siegert's allegations. Siegert's claim failed at an analytically earlier stage of the inquiry. Pp. 500 U. S. 231-235.282 U.S.App.D.C. 392, 895 F.2d 797 (CADC 1990) affirmed.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN, J., joined, and in Parts II and III of which STEVENS, J., joined, post, p. 500 U. S. 236.

1994_93-1456

election procedures, see, e. g., Storer v. Brown, 415 U. S. 724, 730, 733, not to provide them with license to impose substantive qualifications that would exclude classes of candidates from federal office. Pp.828-836.(d) State imposition of term limits for congressional service would effect such a fundamental change in the constitutional framework that it must come through a constitutional amendment properly passed under the procedures set forth in Article V. Absent such an amendment, allowing individual States to craft their own congressional qualifications would erode the structure designed by the Framers to form a "more perfect Union." Pp. 837-838.316 Ark. 251, 872 S. W. 2d 349, affirmed.STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 838. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and SCALIA, JJ., joined, post, p.845.J. Winston Bryant, Attorney General of Arkansas, pro se, argued the cause for petitioner in No. 93-1828. With him on the briefs were Jeffrey A. Bell, Deputy Attorney General, Ann Purvis and David R. Raupp, Assistant Attorneys General, Griffin B. Bell, Paul J. Larkin, Jr., Richard F. Hatfield, and Cleta Deatherage Mitchell. John G. Kester argued the cause for petitioners in No. 93-1456. With him on the briefs was H. William Allen. Robert H. Bork, Theodore B. Olson, and Thomas G. Hungar filed briefs for Representative Jay Dickey et al., and Edward W Warren filed briefs for the Republican Party of Arkansas et al., as respondents under this Court's Rule 12.4.Louis R. Cohen argued the cause for respondents in both cases. With him on the brief for respondents in No. 93-1828 were W Hardy Callcott, Peter B. Hutt II, and Elizabeth J. Robben. Henry Maurice Mitchell, Sherry P. Bartley, Rex E. Lee, Carter G. Phillips, Ronald S. Flagg, Mark D. Hopson, Joseph R. Guerra, and Jeffrey T. Green filed a brief for respondent Thornton in No. 93-1456.Solicitor General Days argued the cause for the United States as amicus curiae urging affirmance. With him on782the brief were Assistant Attorneys General Dellinger and Hunger, Deputy Solicitor General Bender, Paul R. Q. Wolfson, and Douglas N. Letter. tJUSTICE STEVENS delivered the opinion of the Court.The Constitution sets forth qualifications for membership in the Congress of the United States. Article I, § 2, cl. 2, which applies to the House of Representatives, provides:tBriefs of amici curiae urging reversal in both cases were filed for the State of Nebraska et al. by Don Stenberg, Attorney General of Nebraska, and L. Steven Grasz, Deputy Attorney General, and by the Attorneys General for their respective States as follows: 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, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Scott Harshbarger of Massachusetts, Joseph P. Mazurek of Montana, Jeffrey R. Howard of New Hampshire, Lee Fisher of Ohio, Mark Barnett of South Dakota, Charles W Burson of Tennessee, and Joseph B. Meyer of Wyoming; for the State of Washington by Christine O. Gregoire, Attorney General, James K. Pharris and William B. Collins, Senior Assistant Attorneys General, and Jeffrey T. Even, Assistant Attorney General; for Citizens for Term Limits et al. by Ronald A. Zumbrun, Anthony T. Caso, Deborah J. La Fetra, and John M. Groen; for the Citizens United Foundation by William J. Olson and John S. Miles; for Congressional Term Limits Coalition, Inc., by John C. Armor and Lowell D. Weeks; for the Mountain States Legal Foundation et al. by William Perry Pendley; for People's Advocate, Inc., et al. by Jayna P. Karpinski; for the United States Justice Foundation by James V. Lacy; for Virginians for Term Limits et al. by Charles A. Shanor, Zachary D. Fasman, Margaret H. Spurlin, and G. Stephen Parker; and for the Washington Legal Foundation et al. by Timothy E. Flanigan, Daniel J. Popeo, and Paul D. Kamenar.Briefs of amici curiae urging reversal in No. 93-1456 were filed for the Alaska Committee for a Citizen Congress et al. by Jeanette R. Burrage; for the Allied Educational Foundation by Bertram R. Gelfand and JeffreyBriefs of amici curiae urging affirmance in both cases were filed for the American Civil Liberties Union et al. by Kevin J. Hamilton and Steven R. Shapiro; for the California Democratic Party by Daniel H. Lowenstein and Jonathan H. Steinberg; for the League of Women Voters of the United States et al. by Frederic C. Tausend and Herbert E. Wilgis III; and for Henry J. Hyde by Charles A. Rothfeld.783"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."Article I, § 3, cl. 3, which applies to the Senate, similarly provides:"No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."Today's cases present a challenge to an amendment to the Arkansas State Constitution that prohibits the name of an otherwise-eligible candidate for Congress from appearing on the general election ballot if that candidate has already served three terms in the House of Representatives or two terms in the Senate. The Arkansas Supreme Court held that the amendment violates the Federal Constitution. We agree with that holding. Such a state-imposed restriction is contrary to the "fundamental principle of our representative democracy," embodied in the Constitution, that "the people should choose whom they please to govern them." Powell v. McCormack, 395 U. S. 486, 547 (1969) (internal quotation marks omitted). Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers' vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.IAt the general election on November 3, 1992, the voters of Arkansas adopted Amendment 73 to their State Constitution. Proposed as a "Term Limitation Amendment," its preamble stated:784"The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers. Therefore, the people of Arkansas, exercising their reserved powers, herein limit the terms of elected officials."The limitations in Amendment 73 apply to three categories of elected officials. Section 1 provides that no elected official in the executive branch of the state government may serve more than two 4-year terms. Section 2 applies to the legislative branch of the state government; it provides that no member of the Arkansas House of Representatives may serve more than three 2-year terms and no member of the Arkansas Senate may serve more than two 4-year terms. Section 3, the provision at issue in these cases, applies to the Arkansas Congressional Delegation. It provides:"(a) Any person having been elected to three or more terms as a member of the United States House of Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States House of Representatives from Arkansas."(b) Any person having been elected to two or more terms as a member of the United States Senate from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States Senate from Arkansas."Amendment 73 states that it is self-executing and shall apply to all persons seeking election after January 1, 1993.On November 13, 1992, respondent Bobbie Hill, on behalf of herself, similarly situated Arkansas "citizens, residents,785taxpayers and registered voters," and the League of Women Voters of Arkansas, filed a complaint in the Circuit Court for Pulaski County, Arkansas, seeking a declaratory judgment that § 3 of Amendment 73 is "unconstitutional and void." Her complaint named as defendants then-Governor Clinton, other state officers, the Republican Party of Arkansas, and the Democratic Party of Arkansas. The State of Arkansas, through its Attorney General, petitioner Winston Bryant, intervened as a party defendant in support of the amendment. Several proponents of the amendment also intervened, including petitioner U. S. Term Limits, Inc.On cross-motions for summary judgment, the Circuit Court held that § 3 of Amendment 73 violated Article I of the Federal Constitution.1With respect to that holding, in a 5-to-2 decision, the Arkansas Supreme Court affirmed. U. S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S. W. 2d 349, 351 (1994). Writing for a plurality of three justices, Justice Robert L. Brown concluded that the congressional restrictions in Amendment 73 are unconstitutional because the States have no authority "to change, add to, or diminish" the requirements for congressional service enumerated in the Qualifications Clauses. Id., at 265,872 S. W. 2d, at 356. He noted:"If there is one watchword for representation of the various states in Congress, it is uniformity. Federal legislators speak to national issues that affect the citizens of every state .... The uniformity in qualifications man-1 The Circuit Court also held that § 3 was severable from the other provisions of the amendment, but that the entire amendment was void under state law for lack of an enacting clause. App. to Pet. for Cert. in No. 93-1456, p. 60a. The Arkansas Supreme Court affirmed the Circuit Court's decision regarding severability, U. S. Term Limits, Inc. v. Hill, 316 Ark. 251, 270, 872 S. W. 2d 349, 359 (1994), and reversed its decision regarding the enacting clause, id., at 263, 872 S. W. 2d, at 355. The decision of the Arkansas Supreme Court with respect to those issues of state law is not before us.786dated in Article 1 provides the tenor and the fabric for representation in the Congress. Piecemeal restrictions by State would fly in the face of that order." Ibid.Justice Brown's plurality opinion also rejected the argument that Amendment 73 is "merely a ballot access amendment," concluding that "[t]he intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service." Id., at 265-266, 872 S. W. 2d, at 356-357. Justice Brown considered the possibilities that an excluded candidate might run for Congress as a write-in candidate or be appointed to fill a vacancy to be "glimmers of opportunity ... [that] are faint indeed-so faint in our judgment that they cannot salvage Amendment 73 from constitutional attack." Id., at 266, 872 S. W. 2d, at 357. In separate opinions, Justice Dudley and Justice Gerald P. Brown agreed that Amendment 73 violates the Federal Constitution.Two justices dissented from the federal constitutional holding. Justice Hays started from "the premise that all political authority resides in the people, limited only by those provisions of the federal or state constitutions specifically to the contrary." Id., at 281, 872 S. W. 2d, at 367. Because his examination of the text and history of the Qualifications Clauses convinced him that the Constitution contains no express or implicit restriction on the States' ability to impose additional qualifications on candidates for Congress, Justice Hays concluded that § 3 is constitutional. Special Chief Justice Cracraft, drawing a distinction between a measure that "impose[s] an absolute bar on incumbent succession" and a measure that "merely makes it more difficult for an incumbent to be elected," id., at 284, 872 S. W. 2d, at 368, concluded that Amendment 73 does not even implicate the Qualifications Clauses, and instead is merely a permissible ballot access restriction.The State of Arkansas, by its Attorney General, and the intervenors petitioned for writs of certiorari. Because of the importance of the issues, we granted both petitions and787consolidated the cases for argument. See 512 U. S. 1218 (1994). We now affirm.IIAs the opinions of the Arkansas Supreme Court suggest, the constitutionality of Amendment 73 depends critically on the resolution of two distinct issues. The first is whether the Constitution forbids States to add to or alter the qualifications specifically enumerated in the Constitution. The second is, if the Constitution does so forbid, whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualification is of constitutional significance. Our resolution of these issues draws upon our prior resolution of a related but distinct issue: whether Congress has the power to add to or alter the qualifications of its Members.Twenty-six years ago, in Powell v. McCormack, 395 U. S. 486 (1969), we reviewed the history and text of the Qualifications Clauses 2 in a case involving an attempted exclusion2 As we explained, that term may describe more than the provisions quoted, supra, at 783:"In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from 'any Office of honor, Trust or Profit under the United States'; Art. I, § 6, cl. 2, provides that 'no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office'; and § 3 of the 14th Amendment disqualifies any person 'who, having previously taken an oath ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.' It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no less a 'qualification' within the meaning of Art. I, § 5, than those set forth in Art. I, §2." Powell v. McCormack, 395 U. S. 486, 520, n. 41 (1969).In Powell, we saw no need to resolve the question whether those additional provisions constitute "qualifications," because "both sides agree that Powell was not ineligible under any of these provisions." Ibid. We similarly have no need to resolve that question today: Because those additional provisions are part of the text of the Constitution, they have little bearing788of a duly elected Member of Congress. The principal issue was whether the power granted to each House in Art. I, § 5, cl. 1, to judge the "Qualifications of its own Members"3 includes the power to impose qualifications other than those set forth in the text of the Constitution. In an opinion by Chief Justice Warren for eight Members of the Court,4 we held that it does not. Because of the obvious importance of the issue, the Court's review of the history and meaning of the relevant constitutional text was especially thorough. We therefore begin our analysis today with a full statement of what we decided in that case.The Issue in PowellIn November 1966, Adam Clayton Powell, Jr., was elected from a District in New York to serve in the United States House of Representatives for the 90th Congress. Allegations that he had engaged in serious misconduct while serving as a committee chairman during the 89th Congress led to the appointment of a Select Committee to determine his eligibility to take his seat. That committee found that Powell met the age, citizenship, and residency requirements set forth in Art. I, § 2, cl. 2. The committee also found, however, that Powell had wrongfully diverted House funds for the use of others and himself and had made false reports on expenditures of foreign currency. Based on those findings, the House after debate adopted House Resolution 278, excludingon whether Congress and the States may add qualifications to those that appear in the Constitution.3 Art. I, § 5, cl. 1, provides in part: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do business .... "4Justice Stewart dissented on procedural grounds, arguing that the case should have been dismissed as moot. See 395 U. S., at 559-561. Other than expressing agreement with the characterization of the case as raising constitutional issues which "'touch the bedrock of our political system [and] strike at the very heart of representative government,'" id., at 573, Justice Stewart did not comment on the merits.789Powell from membership in the House, and declared his seat vacant. See 395 U. S., at 489-493.Powell and several voters of the district from which he had been elected filed suit seeking a declaratory judgment that the House Resolution was invalid because Art. I, § 2, cl. 2, sets forth the exclusive qualifications for House membership. We ultimately accepted that contention, concluding that the House of Representatives has no "authority to exclude 5 any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution." 395 U. S., at 522 (emphasis in original); see also id., at 547.6 In reaching that conclusion, we undertook a detailed historical review to determine the intent of the Framers. Though recognizing that the Constitutional Convention debates themselves were inconclusive, see id., at 532, we determined that the "relevant historical materials" reveal that Congress has no power to alter the qualifications in the text of the Constitution, id., at 522.Powell's Reliance on HistoryWe started our analysis in Powell by examining the British experience with qualifications for membership in Parliament, focusing in particular on the experience of John Wilkes. While serving as a member of Parliament, Wilkes had published an attack on a peace treaty with France. This5 The Powell Court emphasized the word "exclude" because it had been argued that the House Resolution depriving Powell of his seat should be viewed as an expulsion rather than an exclusion. Having rejected that submission, the Court expressed no opinion on issues related to the House's power to expel a Member who has been sworn in and seated.6 Though Powell addressed only the power of the House, the Court pointed out that its rationale was equally applicable to the Senate: "Since Art. I, § 5, cl. 1, applies to both Houses of Congress, the scope of the Senate's power to judge the qualification of its members necessarily is identical to the scope of the House's power, with the exception, of course, that Art. I, § 3, cl. 3, establishes different age and citizenship requirements for membership in the Senate." Id., at 522, n. 44.790literary endeavor earned Wilkes a conviction for seditious libel and a 22-month prison sentence. In addition, Parliament declared Wilkes ineligible for membership and ordered him expelled. Despite (or perhaps because of) these difficulties, Wilkes was reelected several times. Parliament, however, persisted in its refusal to seat him. After several years of Wilkes' efforts, the House of Commons voted to expunge the resolutions that had expelled Wilkes and had declared him ineligible, labeling those prior actions "'subversive of the rights of the whole body of electors of this kingdom.'" Id., at 528, quoting 22 Parliamentary History of England 1411 (1782) (ParI. Hist. Eng.). After reviewing Wilkes' "long and bitter struggle for the right of the British electorate to be represented by men of their own choice," 395 U. S., at 528, we concluded in Powell that "on the eve of the Constitutional Convention, English precedent stood for the proposition that 'the law of the land had regulated the qualifications of members to serve in parliament' and those qualifications were 'not occasional but fixed.'" Ibid., quoting 16 ParI. Hist. Eng. 589, 590 (1769).Against this historical background, we viewed the Convention debates as manifesting the Framers' intent that the qualifications in the Constitution be fixed and exclusive. We found particularly revealing the debate concerning a proposal made by the Committee of Detail that would have given Congress the power to add property qualifications. James Madison argued that such a power would vest "'an improper & dangerous power in the Legislature,'" by which the Legislature" 'can by degrees subvert the Constitution.'" 395 U. S., at 533-534, quoting 2 Records of the Federal Convention of 1787, pp. 249-250 (M. Farrand ed. 1911) (hereinafter Farrand). 7 Madison continued: "'A Republic may be7 Though we recognized that Madison was responding to a proposal that would have allowed Congress to impose property restrictions, we noted that "Madison's argument was not aimed at the imposition of a property791converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect.'" 395 U. S., at 534, quoting 2 Farrand 250. We expressly noted that the "parallel between Madison's arguments and those made in Wilkes' behalf is striking." 395 U. S., at 534.The Framers further revealed their concerns about congressional abuse of power when Gouverneur Morris suggested modifying the proposal of the Committee of Detail to grant Congress unfettered power to add qualifications. We noted that Hugh Williamson "expressed concern that if a majority of the legislature should happen to be 'composed of any particular description of men, of lawyers for example, ... the future elections might be secured to their own body.'" Id., at 535, quoting 2 Farrand 250. We noted, too, that Madison emphasized the British Parliament's attempts to regulate qualifications, and that he observed: "'[T]he abuse they had made of it was a lesson worthy of our attention.'" 395 U. S., at 535, quoting 2 Farrand 250. We found significant that the Convention rejected both Morris' modification and the Committee's proposal.We also recognized in Powell that the post-Convention ratification debates confirmed that the Framers understood the qualifications in the Constitution to be fixed and unalterable by Congress. For example, we noted that in response to the antifederalist charge that the new Constitution favored the wealthy and well born, Alexander Hamilton wrote:"'The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government .... Thequalification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications." Id., at 534.792qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.''' 395 U. S., at 539, quoting The Federalist No. 60, p. 371 (C. Rossiter ed. 1961) (emphasis added) (hereinafter The Federalist).We thus attached special significance to "Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution." 395 U. S., at 540. Moreover, we reviewed the debates at the state conventions and found that they "also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution." Ibid.; see, e. g., id., at 541, citing 3 Debates on the Adoption of the Federal Constitution 8 (J. Elliot ed. 1863) (hereinafter Elliot's Debates) (Wilson Carey Nicholas, Virginia).8The exercise by Congress of its power to judge the qualifications of its Members further confirmed this understanding. We concluded that, during the first 100 years of its existence, "Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution." 395 U. S., at 542.As this elaborate summary reveals, our historical analysis in Powell was both detailed and persuasive. We thus conclude now, as we did in Powell, that history shows that, with8 Our examination of the history also caused us to reject the argument that the negative phrasing of the Clauses indicated that the Framers did not limit the power of the House to impose additional qualifications for membership. Id., at 537 (noting that the Committee of Style, which edited the Qualifications Clauses to incorporate "their present negative form," had" 'no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so' "); id., at 539, quoting C. Warren, The Making of the Constitution 422, n. 1 (1947) (hereinafter Warren); see also 2 Farrand 553 (the Committee of Style was appointed "to revise the stile and arrange the articles which had been agreed to").793respect to Congress, the Framers intended the Constitution to establish fixed qualifications.9Powell's Reliance on Democratic PrinciplesIn Powell, of course, we did not rely solely on an analysis of the historical evidence, but instead complemented that analysis with "an examination of the basic principles of our democratic system." Id., at 548. We noted that allowing Congress to impose additional qualifications would violate that "fundamental principle of our representative democracy ... 'that the people should choose whom they please to govern them.'" Id., at 547, quoting 2 Elliot's Debates 257 (A. Hamilton, New York).Our opinion made clear that this broad principle incorporated at least two fundamental ideas.10 First, we empha-9 The text of the Qualifications Clauses also supports the result we reached in Powell. John Dickinson of Delaware observed that the enumeration of a few qualifications "would by implication tie up the hands of the Legislature from supplying omissions." 2 Farrand 123. Justice Story made the same point:"It would seem but fair reasoning upon the plainest principles of interpretation, that when the constitution established certain qualifications, as necessary for office, it meant to exclude all others, as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others." 1 J. Story, Commentaries on the Constitution of the United States § 625 (3d ed. 1858) (hereinafter Story). See also Warren 421 ("As the Constitution ... expressly set forth the qualifications of age, citizenship, and residence, and as the Convention refused to grant to Congress power to establish qualifications in general, the maxim expressio unius exclusio alterius would seem to apply").As Dickinson's comment demonstrates, the Framers were well aware of the expressio unius argument that would result from their wording of the Qualifications Clauses; they adopted that wording nonetheless. There thus is no merit either to the dissent's suggestion that Story was the first to articulate the expressio unius argument, see post, at 868-869, or to the dissent's assertion that that argument is completely without merit.10 The principle also incorporated the more practical concern that reposing the power to adopt qualifications in Congress would lead to a selfperpetuating body to the detriment of the new Republic. See, e. g.,794sized the egalitarian concept that the opportunity to be elected was open to all.ll We noted in particular Madison's statement in The Federalist that" '[u]nder these reasonable limitations [enumerated in the Constitution], the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.'" Powell, 395 U. S., at 540, n. 74, quoting The Federalist No. 52, at 326. Similarly, we noted that Wilson Carey Nicholas defended the Constitution against the charge that it "violated democratic principles" by arguing: "'It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence.'" 395 U. S., at 541, quoting 3 Elliot's Debates 8.Second, we recognized the critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government. For example, we noted that "Robert Livingston ... endorsed this same fundamental principle: 'The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their naturalPowell, 395 U. S., at 533-534, quoting 2 Farrand 250 (Madison) (" 'If the Legislature could regulate [the qualification of electors or elected], it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect' "); 395 U. S., at 535-536 (citing statements of Williamson and Madison emphasizing the potential for legislative abuse).11 Contrary to the dissent's suggestion, post, at 879, we do not understand Powell as reading the Qualifications Clauses "to create a personal right to be a candidate for Congress." The Clauses did, however, further the interest of the people of the entire Nation in keeping the door to the National Legislature open to merit of every description.795rights.'" 395 U. S., at 541, n. 76, quoting 2 Elliot's Debates 292-293. Similarly, we observed that "[b]efore the New York convention ... , Hamilton emphasized: 'The true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.'" 395 U. S., at 540-541, quoting 2 Elliot's Debates 257. Quoting from the statement made in 1807 by the Chairman of the House Committee on Elections, we noted that "restrictions upon the people to choose their own representatives must be limited to those 'absolutely necessary for the safety of the society.'" 395 U. S., at 543, quoting 17 Annals of Congo 874 (1807). Thus, in Powell, we agreed with the sentiment expressed on behalf of Wilkes' admission to Parliament: " 'That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution.'" 395 U. S., at 534, n. 65, quoting 16 ParI. Hist. Eng. 589-590 (1769).Powell thus establishes two important propositions: first, that the "relevant historical materials" compel the conclusion that, at least with respect to qualifications imposed by Congress, the Framers intended the qualifications listed in the Constitution to be exclusive; and second, that that conclusion is equally compelled by an understanding of the "fundamental principle of our representative democracy ... 'that the people should choose whom they please to govern them.'" 395 U. S., at 547.Powell's HoldingPetitioners argue somewhat half-heartedly that the narrow holding in Powell, which involved the power of the House to exclude a Member pursuant to Art. I, § 5, does not control the more general question whether Congress has the796power to add qualifications. Powell, however, is not susceptible to such a narrow reading. Our conclusion that Congress may not alter or add to the qualifications in the Constitution was integral to our analysis and outcome. See, e. g., id., at 540 (noting "Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution"). Only two Terms ago we confirmed this understanding of Powell in Nixon v. United States, 506 U. S. 224 (1993). After noting that the three qualifications for membership specified in Art. I, § 2, are of "a precise, limited nature" and "unalterable by the legislature," we explained:"Our conclusion in Powell was based on the fixed meaning of '[q]ualifications' set forth in Art. I, § 2. The claim by the House that its power to 'be the Judge of the Elections, Returns and Qualifications of its own Members' was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership." Id., at 237.1212JUSTICE THOMAS' dissent purports to agree with the outcome of Powell, but rejects the reasoning in the opinion. The dissent treats Powell as simply an application of the "default rule" that if "the Constitution is silent about the exercise of a particular power-that is, where the Constitution does not speak either expressly or by necessary implication-the Federal Government lacks that power and the States enjoy it." Post, at 848, 876, 885-886. However, there is not a word in the Court's opinion in Powell suggesting that the decision rested on the "default rule" that undergirds the dissent's entire analysis. On the contrary, as the excerpt from Nixon quoted in the text plainly states, our conclusion in Powell was based on our understanding of the "fixed meaning of '[q]ualifications' set forth in Art. I, § 2." We concluded that the Framers affirmatively intended the qualifications set forth in the text of the Constitution to be exclusive in order to effectuate the principle that in a representative democracy the people should choose whom they please to govern them.Moreover, the Court has never treated the dissent's "default rule" as absolute. In McCulloch v. Maryland, 4 Wheat. 316 (1819), for example, Chief Justice Marshall rejected the argument that the Constitution's silence on state power to tax federal instrumentalities requires that States797Unsurprisingly, the state courts and lower federal courts have similarly concluded that Powell conclusively resolved the issue whether Congress has the power to impose additional qualifications. See, e. g., Joyner v. Mofford, 706 F.2d 1523, 1528 (CA9 1983) ("In Powell ... , the Supreme Court accepted this restrictive view of the Qualifications Clauseat least as applied to Congress"); Michel v. Anderson, 14 F.3d 623 (CADC 1994) (citing Nixon's description of Powell's holding); Stumpf v. Lau, 108 Nev. 826, 830, 839 P. 2d 120, 122 (1992) (citing Powell for the proposition that "[n]ot even Congress has the power to alter qualifications for these constitutional federal officers").13have the power to do so. Under the dissent's unyielding approach, it would seem that McCulloch was wrongly decided. Similarly, the dissent's approach would invalidate our dormant Commerce Clause jurisprudence, because the Constitution is clearly silent on the subject of state legislation that discriminates against interstate commerce. However, though JUSTICE THOMAS has endorsed just that argument, see, e. g., Oklahoma Tax Comm'n v. Jefferson Lines, Inc., ante, p. 175 (SCALIA, J., concurring in judgment, joined by THOMAS, J.), the Court has consistently rejected that argument and has continued to apply the dormant Commerce Clause, see, e. g., ante, at 179-180; Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888 (1988).13 Our decision in Powell and its historical analysis were consistent with prior decisions from state courts. For example, in State ex rel. Johnson v. Crane, 65 Wyo. 189, 197 P. 2d 864 (1948), the Wyoming Supreme Court undertook a detailed historical analysis and concluded that the Qualifications Clauses were exclusive. Several other courts reached the same result, though without performing the same detailed historical analysis. See, e. g., Hellmann v. Collier, 217 Md. 93, 141 A. 2d 908 (1958); State ex rel. Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918); State ex rel. Eaton v. Schmahl, 140 Minn. 219, 167 N. W. 481 (1918); see generally State ex rel. Johnson v. Crane, 65 Wyo., at 204-213, 197 P. 2d, at 869-874 (citing cases).The conclusion and analysis were also consistent with the positions taken by commentators and scholars. See, e. g., n. 9, supra; see also Warren 412-422 (discussing history and concluding that "[t]he elimination of all power in Congress to fix qualifications clearly left the provisions of the Constitution itself as the sole source of qualifications").798In sum, after examining Powell's historical analysis and its articulation of the "basic principles of our democratic system," we reaffirm that the qualifications for service in Congress set forth in the text of the Constitution are "fixed," at least in the sense that they may not be supplemented by Congress.IIIOur reaffirmation of Powell does not necessarily resolve the specific questions presented in these cases. For petitioners argue that whatever the constitutionality of additional qualifications for membership imposed by Congress, the historical and textual materials discussed in Powell do not support the conclusion that the Constitution prohibits additional qualifications imposed by States. In the absence of such a constitutional prohibition, petitioners argue, the Tenth Amendment and the principle of reserved powers require that States be allowed to add such qualifications.Before addressing these arguments, we find it appropriate to take note of the striking unanimity among the courts that have considered the issue. None of the overwhelming array of briefs submitted by the parties and amici has called to our attention even a single case in which a state court or federal court has approved of a State's addition of qualifications for a Member of Congress. To the contrary, an impressive number of courts have determined that States lack the authority to add qualifications. See, e. g., Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918); Eckwall v. Stadelman, 146 Ore. 439, 446, 30 P. 2d 1037, 1040 (1934); Stockton v. McFarland, 56 Ariz. 138, 144, 106 P. 2d 328, 330 (1940); State ex rel. Johnson v. Crane, 65 Wyo. 189, 197 P. 2d 864 (1948); Dillon v. Fiorina, 340 F. Supp. 729, 731 (N. M. 1972); Stack v. Adams, 315 F. Supp. 1295, 1297-1298 (ND Fla. 1970); Buckingham v. State, 42 Del. 405, 35 A. 2d 903, 905 (1944); Stumpf v. Lau, 108 Nev. 826, 830, 839 P. 2d 120, 123 (1992); Danielson v. Fitzsimmons, 232 Minn. 149, 151,44 N. W. 2d 484, 486 (1950); In re Opinion of Judges, 79 S. D. 585, 587,799116 N. W. 2d 233, 234 (1962). Courts have struck down state-imposed qualifications in the form of term limits, see, e. g., Thorsted v. Gregoire, 841 F. Supp. 1068, 1081 (WD Wash. 1994); Stumpf v. Lau, 108 Nev., at 830, 839 P. 2d, at 123, district residency requirements, see, e. g., Hellmann v. Collier, 217 Md. 93, 100, 141 A. 2d 908, 911 (1958); Dillon v. Fiorina, 340 F. Supp., at 731; Exon v. Tiemann, 279 F. Supp. 609,613 (Neb. 1968); State ex rel. Chavez v. Evans, 79 N. M. 578, 581, 446 P. 2d 445, 448 (1968) (per curiam), loyalty oath requirements, see, e. g., Shub v. Simpson, 196 Md. 177, 199, 76 A. 2d 332, 341, appeal dism'd, 340 U. S. 881 (1950); In re O'Connor, 173 Misc. 419, 421, 17 N. Y. S. 2d 758, 760 (Super. Ct. 1940), and restrictions on those convicted of felonies, see, e. g., Application of Ferguson, 57 Misc. 2d 1041, 1043, 294 N. Y. S. 2d 174, 176 (Super. Ct. 1968); Danielson v. Fitzsimmons, 232 Minn., at 151, 44 N. W. 2d, at 486; State ex rel. Eaton v. Schmahl, 140 Minn. 219, 220, 167 N. W. 481 (1918) (per curiam). Prior to Powell, the commentators were similarly unanimous. See, e. g., 1 W. Blackstone, Commentaries, Appendix 213 (S. Tucker ed. 1803) ("[T]hese provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory"); 1 Story § 627 (each Member of Congress is "an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states"); 1 J. Kent, Commentaries on American Law 228, n. a (3d ed. 1836) ("[T]he objections to the existence of any such power [on the part of the States to add qualifications are] ... too palpable and weighty to admit of any discussion"); G. McCrary, American Law of Elections § 322 (4th ed. 1897) ("It is not competent for any State to add to or in any manner change the qualifications for a Federal office, as prescribed by the Constitution or laws of the United States"); T. Cooley, General Principles of Constitutional Law 268 (2d ed. 1891) ("The Constitution and laws of the United States determine what shall be the qualifications for federal offices, and state800constitutions and laws can neither add to nor take away from them"); C. Burdick, Law of the American Constitution 160 (1922) ("It is clearly the intention of the Constitution that all persons not disqualified by the terms of that instrument should be eligible to the federal office of Representative"); id., at 165 ("It is as clear that States have no more right to add to the constitutional qualifications of Senators than they have to add to those for Representatives"); Warren 422 ("The elimination of all power in Congress to fix qualifications clearly left the provisions of the Constitution itself as the sole source of qualifications").14 This impressive and uniform body of judicial decisions and learned commentary indicates that the obstacles confronting petitioners are formidable indeed.Petitioners argue that the Constitution contains no express prohibition against state-added qualifications, and that Amendment 73 is therefore an appropriate exercise of a State's reserved power to place additional restrictions on the choices that its own voters may make. We disagree for two independent reasons. First, we conclude that the power to add qualifications is not within the "original powers" of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers in-14 More recently, the commentators have split, with some arguing that state-imposed term limits are constitutional, see, e. g., Gorsuch & Guzman, Will the Gentlemen Please Yield? A Defense of the Constitutionality of State-Imposed Term Limitation, 20 Hofstra L. Rev. 341 (1991); Hills, A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U. Pitt. L. Rev. 97 (1991); Safranek, Term Limitations: Do the Winds of Change Blow Unconstitutional?, 26 Creighton L. Rev. 321 (1993), and others arguing that they are not, see, e. g., Lowenstein, Are Congressional Term Limits Constitutional?, 18 Harv. J. L. & Pub. Policy 1 (1994); Eid & Kolbe, The New Anti-Federalism: The Constitutionality of State-Imposed Limits on Congressional Terms of Office, 69 Denver L. Rev. 1 (1992); Comment, Congressional Term Limits: Unconstitutional by Initiative, 67 Wash. L. Rev. 415 (1992).801tended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby "divested" States of any power to add qualifications.The "plan of the convention" as illuminated by the historical materials, our opinions, and the text of the Tenth Amendment draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States. As Chief Justice Marshall explained, "it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument." Sturges v. Crowninshield, 4 Wheat. 122, 193 (1819).This classic statement by the Chief Justice endorsed Hamilton's reasoning in The Federalist No. 32 that the plan of the Constitutional Convention did not contemplate "[a]n entire consolidation of the States into one complete national sovereignty," but only a partial consolidation in which "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States." The Federalist No. 32, at 198. The text of the Tenth Amendment unambiguously confirms this principle:"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."As we have frequently noted, "[t]he States unquestionably do retain a significant measure of sovereign authority. They do so, however, only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 549 (1985) (internal quotation marks and citation omitted) (em-802phasis added); see also New York v. United States, 505 U. S. 144, 155-156 (1992).Source of the PowerContrary to petitioners' assertions, the power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States. Petitioners' Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only "reserve" that which existed before. As Justice Story recognized, "the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them .... No state can say, that it has reserved, what it never possessed." 1 Story § 627.Justice Story's position thus echoes that of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316 (1819). In McCulloch, the Court rejected the argument that the Constitution's silence on the subject of state power to tax corporations chartered by Congress implies that the States have "reserved" power to tax such federal instrumentalities. As Chief Justice Marshall pointed out, an "original right to tax" such federal entities "never existed, and the question whether it has been surrendered, cannot arise." Id., at 430. See also Crandall v. Nevada, 6 Wall. 35, 46 (1868). In language that presaged Justice Story's argument, Chief Justice Marshall concluded: "This opinion does not deprive the States of any resources which they originally possessed." 4 Wheat., at 436.1515Thus, contrary to the dissent's suggestion, post, at 856-857, Justice Story was not the first, only, or even most influential proponent of the principle that certain powers are not reserved to the States despite constitutional silence. Instead, as Chief Justice Marshall's opinion in McCulloch reveals, that principle has been a part of our jurisprudence for over 175 years.803With respect to setting qualifications for service in Congress, no such right existed before the Constitution was ratified. The contrary argument overlooks the revolutionary character of the Government that the Framers conceived. Prior to the adoption of the Constitution, the States had joined together under the Articles of Confederation. In that system, "the States retained most of their sovereignty, like independent nations bound together only by treaties." Wesberry v. Sanders, 376 U. S. 1, 9 (1964). After the Constitutional Convention convened, the Framers were presented with, and eventually adopted a variation of, "a plan not merely to amend the Articles of Confederation but to create an entirely new National Government with a National Executive, National Judiciary, and a National Legislature." Id., at 10. In adopting that plan, the Framers envisioned a uniform national system, rejecting the notion that the Nation was a collection of States, and instead creating a direct link between the National Government and the people of the United States. See, e. g., FERC v. Mississippi, 456 U. S. 742,791 (1982) (O'CONNOR, J., concurring in judgment in part and dissenting in part) ("The Constitution ... permitt[ed] direct contact between the National Government and the individual citizen"). In that National Government, representatives owe primary allegiance not to the people of a State, but to the people of the Nation. As Justice Story observed, each Member of Congress is "an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states .... Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people." 1 Story § 627. Representatives and Senators are as much officers of the entire Union as is the President. States thus "have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president .... It is no original prerogative of state804power to appoint a representative, a senator, or president for the union." Ibid.16We believe that the Constitution reflects the Framers' general agreement with the approach later articulated by Justice Story. For example, Art. I, § 5, cl. 1, provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." The text of the Constitution thus gives the representatives of all the people the final say in judging the qualifications of the representatives of any one State. For this reason, the dissent falters when it states that "the people of Georgia have no say over whom the people of Massachusetts select to represent them in Congress." Post, at 859.Two other sections of the Constitution further support our view of the Framers' vision. First, consistent with Story's view, the Constitution provides that the salaries of representatives should "be ascertained by Law, and paid out of the Treasury of the United States," Art. I, § 6, rather than by individual States. The salary provisions reflect the view that representatives owe their allegiance to the people, and not to the States. Second, the provisions governing elections reveal the Framers' understanding that powers over the election of federal officers had to be delegated to, rather than reserved by, the States. It is surely no coincidence that the context of federal elections provides one of the few areas in which the Constitution expressly requires action by the States, namely that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be16 The Constitution's provision for election of Senators by the state legislatures, see Art. I, § 3, cl. 1, is entirely consistent with this view. The power of state legislatures to elect Senators comes from an express delegation of power from the Constitution, and thus was not at all based on some aspect of original state power. Of course, with the adoption of the Seventeenth Amendment, state power over the election of Senators was eliminated, and Senators, like Representatives, were elected directly by the people.805prescribed in each State by the Legislature thereof." Art. I, § 4, cl. 1. This duty parallels the duty under Article II that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Art. II, § 1, cl. 2. These Clauses are express delegations of power to the States to act with respect to federal elections.17This conclusion is consistent with our previous recognition that, in certain limited contexts, the power to regulate the incidents of the federal system is not a reserved power of the States, but rather is delegated by the Constitution. Thus, we have noted that "[w]hile, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, ... this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of Art. 1." United States v. Classic, 313 U. S. 299, 315 (1941). Cf. Hawke v. Smith, No.1, 253 U. S. 221, 230 (1920) ("[T]he power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification by the State derives its authority from the Federal Constitution to which the State and its people have alike assented").In short, as the Framers recognized, electing representatives to the National Legislature was a new right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution. Instead, any state power to set the qualifications for membership in Congress must derive not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty. In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist.17The Clauses also reflect the idea that the Constitution treats both the President and Members of Congress as federal officers.806The Preclusion of State PowerEven if we believed that States possessed as part of their original powers some control over congressional qualifications, the text and structure of the Constitution, the relevant historical materials, and, most importantly, the "basic principles of our democratic system" all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution.Much of the historical analysis was undertaken by the Court in Powell. See supra, at 789-793. There is, however, additional historical evidence that pertains directly to the power of the States. That evidence, though perhaps not as extensive as that reviewed in Powell, leads unavoidably to the conclusion that the States lack the power to add qualifications.The Convention and Ratification DebatesThe available affirmative evidence indicates the Framers' intent that States have no role in the setting of qualifications. In Federalist Paper No. 52, dealing with the House of Representatives, Madison addressed the "qualifications of the electors and the elected." The Federalist No. 52, at 325. Madison first noted the difficulty in achieving uniformity in the qualifications for electors, which resulted in the Framers' decision to require only that the qualifications for federal electors be the same as those for state electors. Madison argued that such a decision "must be satisfactory to every State, because it is comfortable to the standard already established, or which may be established, by the State itself." Id., at 326. Madison then explicitly contrasted the state control over the qualifications of electors with the lack of state control over the qualifications of the elected:"The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity,807have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election be an inhabitant of the State he is to represent; and, during the time of his service must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith." Ibid.1818 The dissent places a novel and implausible interpretation on this paragraph. Consistent with its entire analysis, the dissent reads Madison as saying that the sole purpose of the Qualifications Clauses was to set minimum qualifications that would prevent the States from sending incompetent representatives to Congress; in other words, Madison viewed the Clauses as preventing the States from opening the door to this part of the federal service too widely. See post, at 900-902.The text of The Federalist No. 52 belies the dissent's reading. First, Madison emphasized that "[t]he qualifications of the elected ... [were] more susceptible of uniformity." His emphasis on uniformity would be quite anomalous if he envisioned that States would create for their representatives a patchwork of qualifications. Second, the idea that Madison was in fact concerned that States would open the doors to national service too widely is entirely inconsistent with Madison's emphasizing that the Constitution kept "the door ... open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith." The Federalist No. 52, at 326.Finally the dissent argues that "Madison could not possibly have been rebuking the States for setting unduly high qualifications for their representatives in Congress," post, at 901, and suggests that Madison's comments do not reflect "an implicit criticism of the States for setting unduly high entrance barriers," post, at 902. We disagree. Though the dissent attempts to minimize the extensiveness of state-imposed qualifications by focusing on the qualifications that States imposed on delegates to Congress and the age restrictions that they imposed on state legislators, the dissent neglects to give appropriate attention to the abundance of property, religious, and other qualifications that States imposed on state808Madison emphasized this same idea in The Federalist No. 57:"Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people." The Federalist No. 57, at 351 (emphasis added).The provisions in the Constitution governing federal elections confirm the Framers' intent that States lack power to add qualifications. The Framers feared that the diverse interests of the States would undermine the National Legislature, and thus they adopted provisions intended to minimize the possibility of state interference with federal elections. For example, to prevent discrimination against federal electors, the Framers required in Art. I, § 2, cl. 1, that the qualifications for federal electors be the same as those for state electors. As Madison noted, allowing States to differentiate between the qualifications for state and federal electors "would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone." The Federalist No. 52, at 326. Similarly, in Art. I, § 4, cl. 1, though giving the States the freedom to regulate the "Times, Places and Manner of holding Elections," the Framers created a safeguard against state abuse by giving Congress the power to "by Law make or alter such Regulations." The Convention debates make clear that the Framers' overriding concern was the potential for States' abuse of the power to set theelected officials. As we describe in some detail, infra, at 823-826, nearly every State had property qualifications, and many States had religious qualifications, term limits, or other qualifications. As Madison surely recognized, without a constitutional prohibition, these qualifications could be applied to federal representatives. We cannot read Madison's comments on the "open door" of the Federal Government as anything but a rejection of the "unduly high" barriers imposed by States.809"Times, Places and Manner" of elections. Madison noted that "[i]t was impossible to foresee all the abuses that might be made of the discretionary power." 2 Farrand 240. Gouverneur Morris feared that "the States might make false returns and then make no provisions for new elections." Id., at 241. When Charles Pinckney and John Rutledge moved to strike the congressional safeguard, the motion was soundly defeated. Id., at 240-241. As Hamilton later noted: "Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy." The Federalist No. 59, at 363. See also ibid. (one justification for Times, Places and Manner Clause is that "[i]f we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government").19The Framers' discussion of the salary of representatives reveals similar concerns. When the issue was first raised, Madison argued that congressional compensation should be fixed in the Constitution, rather than left to state legislatures, because otherwise "it would create an improper dependence." 1 Farrand 216. George Mason agreed, noting19 The dissent attacks our holding today by arguing that the Framers' distrust of the States extended only to measures adopted by "state legislatures," and not to measures adopted by "the people themselves." Post, at 889. See also post, at 889-890 ("These delegates presumably did not want state legislatures to be able to tell Members of Congress from their State" how to vote) (emphasis added). The novelty and expansiveness of the dissent's attack is quite astonishing. We are aware of no case that would even suggest that the validity of a state law under the Federal Constitution would depend at all on whether the state law was passed by the state legislature or by the people directly through amendment of the state constitution. Indeed, no party has so argued. Quite simply, in our view, the dissent's distinction between state legislation passed by the state legislature and legislation passed by state constitutional amendment is untenable. The qualifications in the Constitution are fixed, and may not be altered by either States or their legislatures.810that "the parsimony of the States might reduce the provision so low that ... the question would be not who were most fit to be chosen, but who were most willing to serve." Ibid.When the issue was later reopened, Nathaniel Gorham stated that he "wished not to refer the matter to the State Legislatures who were always paring down salaries in such a manner as to keep out of offices men most capable of executing the functions of them." Id., at 372. Edmund Randolph agreed that "[i]f the States were to pay the members of the N at[ional] Legislature, a dependence would be created that would vitiate the whole System." Ibid. Rufus King "urged the danger of creating a dependence on the States," ibid., and Hamilton noted that "[t]hose who pay are the masters of those who are paid," id., at 373. The Convention ultimately agreed to vest in Congress the power to set its own compensation. See Art. I, § 6.20In light of the Framers' evident concern that States would try to undermine the National Government, they could not have intended States to have the power to set qualifications. Indeed, one of the more anomalous consequences of petitioners' argument is that it accepts federal supremacy over the procedural aspects of determining the times, places, and manner of elections while allowing the States carte blanche with respect to the substantive qualifications for membership in Congress.The dissent nevertheless contends that the Framers' distrust of the States with respect to elections does not preclude the people of the States from adopting eligibility requirements to help narrow their own choices. See post, at 888-889. As the dissent concedes, post, at 893, however, the Framers were unquestionably concerned that the States would simply not hold elections for federal officers, and therefore the Framers gave Congress the power to "make20 The Framers' decision to reject a proposal allowing for States to recall their own representatives, see 1 Farrand 20, 217, reflects these same concerns.811or alter" state election regulations. Yet under the dissent's approach, the States could achieve exactly the same result by simply setting qualifications for federal office sufficiently high that no one could meet those qualifications. In our view, it is inconceivable that the Framers would provide a specific constitutional provision to ensure that federal elections would be held while at the same time allowing States to render those elections meaningless by simply ensuring that no candidate could be qualified for office. Given the Framers' wariness over the potential for state abuse, we must conclude that the specification of fixed qualifications in the constitutional text was intended to prescribe uniform rules that would preclude modification by either Congress or the States.21We find further evidence of the Framers' intent in Art. I, § 5, cl. 1, which provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." That Art. I, § 5, vests a federal tribunal with ultimate authority to judge a Member's qualifications is fully consistent with the understanding that those qualifications are fixed in the Federal Constitution, but not with the understanding that they can be altered by the States. If the States had the right to prescribe additional qualifications-21 The dissent's arguments concerning these provisions of the Constitution, see post, at 889-895, simply reinforce our argument that the constitutional provisions surrounding elections all reveal the Framers' basic fear that the States might act to undermine the National Legislature. For example, as the dissent concedes, the Framers feared that States would use the control over salaries to influence the votes of their representative. See post, at 889-890. Similarly, the dissent concedes that the Times, Places and Manner Clause reflects the Framers' fear that States would not conduct federal elections at all. See post, at 894. We believe that the dissent's reading of the provisions at issue understates considerably the extent of the Framers' distrust. However, even under the dissent's reading of the provisions, the text of the Constitution unquestionably reveals the Framers' distrust of the States regarding elections, and thus provides powerful evidence supporting our view that the qualifications established in the Constitution are exclusive.812such as property, educational, or professional qualificationsfor their own representatives, state law would provide the standard for judging a Member's eligibility. As we concluded in Murdock v. Memphis, 20 Wall. 590 (1875), federal questions are generally answered finally by federal tribunals because rights which depend on federal law "should be the same everywhere" and "their construction should be uniform." Id., at 632. The judging of questions concerning rights which depend on state law is not, however, normally assigned to federal tribunals. See id., at 636. The Constitution's provision for each House to be the judge of its own qualifications thus provides further evidence that the Framers believed that the primary source of those qualifications would be federal law.We also find compelling the complete absence in the ratification debates of any assertion that States had the power to add qualifications. In those debates, the question whether to require term limits, or "rotation," was a major source of controversy. The draft of the Constitution that was submitted for ratification contained no provision for rotation.22 In arguments that echo in the preamble to Arkansas' Amendment 73, opponents of ratification condemned the absence of a rotation requirement, noting that "there is no doubt that senators will hold their office perpetually; and in this situation, they must of necessity lose their dependence, and their attachments to the people." 23 Even proponents of ratifica-22 A proposal requiring rotation for Members of the House was proposed at the Convention, see 1 Farrand 20, but was defeated unanimously, see id., at 217. There is no record of any debate on either occasion.232 Elliot's Debates 309-310 (N. Y., Smith). See also id., at 287-288 (N. Y., G. Livingston) (Senators will enjoy "a security of their re-election, as long as they please .... In such a situation, men are apt to forget their dependence, lose their sympathy, and contract selfish habits .... The senators will associate only with men of their own class, and thus become strangers to the condition of the common people"); id., at 30-31 (Mass., Turner) ("Knowing the numerous arts that designing men are prone to, to secure their election, and perpetuate themselves, it is my hearty wish that813tion expressed concern about the "abandonment in every instance of the necessity of rotation in office." 24 At several ratification conventions, participants proposed amendments that would have required rotation.25The Federalists' responses to those criticisms and proposals addressed the merits of the issue, arguing that rotation was incompatible with the people's right to choose. As we noted above, Robert Livingston argued:a rotation may be provided for"); id., at 62 (Mass., Kingsley) ("[W]e are deprived of annual elections, have no rotation, and cannot recall our members; therefore our federal rulers will be masters, and not servants"); Samuel Bryan, "Centinel I," Independent Gazetteer (Phil., Oct. 5, 1787), 1 Debate on the Constitution 52, 61 (B. Bailyn ed. 1990) (hereinafter Bailyn) ("[A]s there is no exclusion by rotation, [Senators] may be continued for life, which, from their extensive means of influence, would follow of course"); Letter from George Lee Turberville to Madison (Dec. 11, 1787), 1 Bailyn 477, 479 ("Why was not that truely republican mode of forcing the Rulers or sovereigns of the states to mix after stated Periods with the people again-observed"); Mercy Otis Warren, "A Columbian Patriot" (Boston, Feb. 1788), 2 Bailyn 284, 292 ("There is no provision for a rotation, nor any thing to prevent the perpetuity of office in the same hands for life .... By this neglect we lose the advantages of that check to the overbearing insolence of office, which by rendering him ineligible at certain periods, keeps the mind of man in equilibrio, and teaches him the feelings of the governed").24 Letter of Dec. 20, 1787, from Thomas Jefferson to James Madison. 1 id., at 209, 211. In 1814, in another private letter, Jefferson expressed the opinion that the States had not abandoned the power to impose term limits. See Letter of Jan. 31, 1814, to Joseph C. Cabell, in 14 Writings of Thomas Jefferson 82 (A. Lipscomb ed. 1904). Though he noted that his reasoning on the matter "appears to me to be sound," he went on to note:"but, on so recent a change of view, caution requires us not to be too confident, and that we admit this to be one of the doubtful questions on which honest men may differ with the purest of motives; and the more readily, as we find we have differed from ourselves on it." Id., at 83. The text of Jefferson's response clearly belies the dissent's suggestion that Jefferson "himself did not entertain serious doubts of its correctness." Post, at 874, n. 14.25 See n. 40, infra.814"The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights. This rotation is an absurd species of ostracism." 2 Elliot's Debates 292-293.Similarly, Hamilton argued that the representatives' need for reelection rather than mandatory rotation was the more effective way to keep representatives responsive to the people, because "[w]hen a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument." Id., at 320.26Regardless of which side has the better of the debate over rotation, it is most striking that nowhere in the extensive ratification debates have we found any statement by either a proponent or an opponent of rotation that the draft constitution would permit States to require rotation for the representatives of their own citizens. If the participants in the debate had believed that the States retained the authority to impose term limits, it is inconceivable that the Federalists would not have made this obvious response to the arguments of the pro-rotation forces. The absence in an otherwise freewheeling debate of any suggestion that States had the power to impose additional qualifications unquestionably reflects the Framers' common understanding that States lacked that power.In short, if it had been assumed that States could add additional qualifications, that assumption would have provided the basis for a powerful rebuttal to the arguments being advanced. The failure of intelligent and experienced advocates to utilize this argument must reflect a general agree-26 George Washington made a similar argument:"The power under the Constitution will always be in the People. It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own chusing; and whenever it is executed contrary to their Interest, or not agreeable to their wishes, their Servants can, and undoubtedly will be, recalled." 1 Bailyn 305, 306-307.815ment that its premise was unsound, and that the power to add qualifications was one that the Constitution denied the States.2727 Petitioners set forth several other arguments to support their contention that the Convention and ratification debates reveal that the qualifications in the Qualifications Clauses were not intended to be exclusive. We find none of these persuasive.Petitioners first observe that the notes of Edmund Randolph, who was a member of the Committee of Detail, reveal that an early draft of the Qualifications Clause provided:"The qualifications of (a) delegates shall be the age of twenty-five years at least. and citizenship: (and any person possessing these qualifications may be elected except)." 2 Farrand 139 (footnote omitted).Petitioners suggest that the deletion of the parenthetical material from the Clause suggests that the Framers did not intend the Qualifications Clause to be exclusive. We reject this argument. First, there is no evidence that the draft in Randolph's notes was ever presented to the Convention, and thus the deletion of the Clause tells us little about the views of the Convention as a whole. Moreover, even assuming that the Convention had seen the draft, the deletion of the language without comment is at least as consistent with a belief-as suggested by Dickinson, see n. 9, supra-that the language was superfluous as with a concern that the language was inappropriate. Finally, contrary to the rather ingenious argument advanced in the dissent, see post, at 887-888, it seems to us irrelevant that the draft in question did not include a comparable parenthetical clause referring to "elected" Senators because the draft contemplated that Senators, unlike Representatives, would not be chosen by popular election.Nor is there merit to the argument that the inclusion in the Committee's final draft of a provision allowing each House to add property qualifications, see 2 Farrand 179, is somehow inconsistent with our holding today. First, there is no conflict between our holding that the qualifications for Congress are fixed in the Constitution and a provision in the Constitution itself providing for property qualifications. Indeed, that is why our analysis is consistent with the other disqualifications contained in the Constitution itself. See n. 2, supra. The Constitution simply prohibits the imposition by either States or Congress of additional qualifications that are not contained in the text of the Constitution. Second, of course, the property provision was deleted, thus providing further evidence that the Framers wanted to minimize the barriers that would exclude the most able citizens from service in the National Government.Respondent Republican Party of Arkansas also argues that the negative phrasing of the Qualifications Clauses suggests that they were not meant816Congressional ExperienceCongress' subsequent experience with state-imposed qualifications provides further evidence of the general consensus on the lack of state power in this area. In Powell, we examined that experience and noted that during the first 100 years of its existence, "Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution." 395 U. S., at 542. Congress first confronted the issue in 1807 when it faced a challenge to the qualifications of William McCreery, a Representative from Maryland who allegedly did not satisfy a residency requirement imposed by that State. In recommending that McCreery be seated, the Report of the House Committee on Elections noted:"'The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules .... '" Powell, 395 U. S., at 542, quoting 17 Annals of Congo 871 (1807) (emphasis added).28The Chairman of the House Committee on Elections elaborated during debate:to be exclusive. Brief for Respondents Republican Party of Arkansas et al. 5-6. This argument was firmly rejected in Powell, see 395 U. S., at 537-539, and n. 73; see also Warren 422, n. 1, and we see no need to revisit it now.28We recognize that the "Committee of Elections were not unanimous in these sentiments," and that a "minority advocated the right of the State Legislature to prescribe additional qualifications to the members from the respective States." 17 Annals of Congo 873 (1807).817"'The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them.'" Powell, 395 U. S., at 542-543, quoting from 17 Annals of Congo 872 (1807).As we noted in Powell, the congressional debate over the committee's recommendation tended to focus on the "narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution," 395 U. S., at 543. The whole House, however, did not vote on the committee's Report, and instead voted only on a simple resolution: "Resolved, That William McCreery is entitled to his seat in this House." 17 Annals of Congo 1238 (1807). That resolution passed by a vote of 89 to 18. Ibid.Though the House Debate may be inconclusive, commentators at the time apparently viewed the seating of McCreery as confirmation of the States' lack of power to add qualifications. For example, in a letter to Joseph Cabell, Thomas Jefferson noted the argument that "to add new qualifications to those of the Constitution would be as much an alteration as to detract from them"; he then added: "And so I think the House of Representatives of Congress decided in some case; I believe that of a member from Baltimore." Letter of Jan. 31, 1814, to Joseph C. Cabell, in 14 Writings of Thomas Jefferson 82 (A. Lipscomb ed. 1904).Similarly, for over 150 years prior to Powell, commentators viewed the seating of McCreery as an expression of the view of the House that States could not add to the qualifications established in the Constitution. Thus, for example, referring to the McCreery debates, one commentator noted, "By the decision in this case, [and that in another contested election], it seems to have been settled that the States have not a right to require qualifications from members, different818from, or in addition to, those prescribed by the constitution." Cases of Contested Elections in Congress 171 (M. Clarke & D. Hall eds. 1834) (emphasis in original). Other commentators viewed the incident similarly. See, e. g., G. Paschal, The Constitution of the United States 66 (1876) (citing McCreery to support the proposition that "[t]he Constitution having fixed the qualifications of members, no additional qualifications can rightfully be required by the States") (emphasis in original); G. McCrary, American Law of Elections § 323 (4th ed. 1897) (citing McCreery and stating "A state law requiring that a Representative in Congress shall reside in a particular town and country within the district from which he is chosen is unconstitutional and void"); W. Sutherland, Notes on the Constitution of the United States 40 (1904) (citing McCreery to support statement that "[t]his clause fixes the qualifications of members so far as state action is concerned, and no additional qualifications can be required by the state"); C. Burdick, Law of the American Constitution 160 (1922) (citing McCreery to support the proposition that state-imposed "limitations have been held ... not to be effective"). Finally, it is clear that in Powell we viewed the seating of McCreery as the House's acknowledgment that the qualifications in the Constitution were fixed. See 395 U. S., at 542-543.The Senate experience with state-imposed qualifications further supports our conclusions. In 1887, for example, the Senate seated Charles Faulkner of West Virginia, despite the fact that a provision of the West Virginia Constitution purported to render him ineligible to serve. The Senate Committee on Privileges and Elections unanimously concluded that "no State can prescribe any qualification to the office of United States Senator in addition to those declared in the Constitution of the United States." S. Rep. No.1, 50th Cong., 1st Sess., 4 (1887). The Senate Committee on Rules and Administration reached the same conclusion in 1964 when faced with a challenge to Pierre Salinger, who had819been appointed to serve as Senator from California. See S. Rep. No. 1381, 88th Cong., 2d Sess., 5 ("It is well settled that the qualifications established by the U. S. Constitution for the office of U. S. Senator are exclusive, and a State cannot, by constitutional or statutory provisions, add to or enlarge upon those qualifications").We recognize, as we did in Powell, that "congressional practice has been erratic" 29 and that the precedential value of congressional exclusion cases is "quite limited." Powell, 395 U. S., at 545-546. Nevertheless, those incidents lend support to the result we reach today.Democratic PrinciplesOur conclusion that States lack the power to impose qualifications vindicates the same "fundamental principle of our representative democracy" that we recognized in Powell, namely, that "the people should choose whom they please to govern them." Id., at 547 (internal quotation marks omitted).As we noted earlier, the Powell Court recognized that an egalitarian ideal-that election to the National Legislature should be open to all people of merit-provided a critical foundation for the constitutional structure. This egalitarian theme echoes throughout the constitutional debates. In The Federalist No. 57, for example, Madison wrote:"Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people." The Federalist No. 57, at 351.Similarly, hoping to persuade voters in New York that the Constitution should be ratified, John Stevens, Jr., wrote:29 See, e. g., Powell, 395 U. S., at 544-546 (noting examples).820"[N]o Government, that has ever yet existed in the world, affords so ample a field, to individuals of all ranks, for the display of political talents and abilities .... No man who has real merit, let his situation be what it will, need despair." 1 Bailyn 487, 492. And Timothy Pickering noted that, "while several of the state constitutions prescribe certain degrees of property as indispensable qualifications for offices, this which is proposed for the U. S. throws the door wide open for the entrance of every man who enjoys the confidence of his fellow citizens." Letter from T. Pickering to C. Tillinghast (Dec. 24, 1787), 1 Bailyn 289, 290 (emphasis in original).30 Additional qualifications pose the same obstacle to open elections whatever their source. The egalitarian ideal, so valued by the Framers, is thus compromised to the same degree by additional qualifications imposed by States as by those imposed by Congress.Similarly, we believe that state-imposed qualifications, as much as congressionally imposed qualifications, would undermine the second critical idea recognized in Powell: that an aspect of sovereignty is the right of the people to vote for whom they wish. Again, the source of the qualification is of little moment in assessing the qualification's restrictive impact.Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose30 See also 2 Farrand 123 (it is "improper that any man of merit should be subjected to disabilities in a Republic where merit was understood to form the great title to public trust, honors & rewards") (Dickinson); The Federalist No. 36, at 217 ("There are strong minds in every walk of life that will rise superior to the disadvantages of situation and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all") (Hamilton); N. Webster, "A Citizen of America," (Phil., Oct. 17,1787),1 Bailyn 129, 142 ("[M]oney is not made a requisitethe places of senators are wisely left open to all persons of suitable age and merit").821representatives belongs not to the States, but to the people. From the start, the Framers recognized that the "great and radical vice" of the Articles of Confederation was "the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist." The Federalist No. 15, at 108 (Hamilton). Thus the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by States, but by the people. See, e. g., supra, at 802-804. The Framers implemented this ideal most clearly in the provision, extant from the beginning of the Republic, that calls for the Members of the House of Representatives to be "chosen every second Year by the People of the several States." Art. I, § 2, cl. 1. Following the adoption of the Seventeenth Amendment in 1913, this ideal was extended to elections for the Senate. The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people. As Chief Justice John Marshall observed:"The government of the Union, then, ... is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." McCulloch v. Maryland, 4 Wheat., at 404-405.31 Ours is a "government of the people, by the people, for the people." A. Lincoln, Gettysburg Address (1863).31 Cf. Hawke v. Smith (No.1), 253 U. S. 221, 226 (1920) ("The Constitution of the United States was ordained by the people, and, when duly ratified, it became the Constitution of the people of the United States"). Compare U. S. Const., Preamble ("We the People"), with The Articles of Confederation, reprinted in 2 Bailyn 926 ("we the under signed Delegates of the States").822The Framers deemed this principle critical when they discussed qualifications. For example, during the debates on residency requirements, Morris noted that in the House, "the people at large, not the States, are represented." 2 Farrand 217 (emphasis in original) (footnote omitted). Similarly, George Read noted that the Framers "were forming a Nati[ona]l Gov[ernmen]t and such a regulation would correspond little with the idea that we were one people." Ibid. (emphasis in original). James Wilson "enforced the same consideration." Ibid.Consistent with these views, the constitutional structure provides for a uniform salary to be paid from the national treasury, allows the States but a limited role in federal elections, and maintains strict checks on state interference with the federal election process. The Constitution also provides that the qualifications of the representatives of each State will be judged by the representatives of the entire Nation. The Constitution thus creates a uniform national body representing the interests of a single people.Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure. Cf. McCulloch v. Maryland, 4 Wheat., at 428429 ("Those means are not given by the people of a particular State, not given by the constituents of the legislature, ... but by the people of all the States. They are given by all, for the benefit of all-and upon theory, should be subjected to that government only which belongs to all"). Such a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States.3232 There is little significance to the fact that Amendment 73 was adopted by a popular vote, rather than as an Act of the state legislature. See n. 19, supra. In fact, none of the petitioners argues that the constitutionality of a state law would depend on the method of its adoption. This is proper,823State PracticePetitioners attempt to overcome this formidable array of evidence against the States' power to impose qualifications by arguing that the practice of the States immediately after the adoption of the Constitution demonstrates their understanding that they possessed such power. One may properly question the extent to which the States' own practice is a reliable indicator of the contours of restrictions that the Constitution imposed on States, especially when no court has ever upheld a state-imposed qualification of any sort. See supra, at 798-799. But petitioners' argument is unpersuasive even on its own terms. At the time of the Convention, "[a]lmost all the State Constitutions required members of their Legislatures to possess considerable property." See Warren 416-417.33 Despite this near uniformity, only onebecause the voters of Arkansas, in adopting Amendment 73, were acting as citizens of the State of Arkansas, and not as citizens of the National Government. The people of the State of Arkansas have no more power than does the Arkansas Legislature to supplement the qualifications for service in Congress. As Chief Justice Marshall emphasized in McCulloch, "Those means are not given by the people of a particular State, not given by the constituents of the legislature, ... but by the people of all the States." 4 Wheat., at 428-429.The dissent concedes that the people of the Nation have an interest in preventing any State from sending "immature, disloyal, or unknowledgeable representatives to Congress," post, at 869, but does not explain why the people of the Nation lack a comparable interest in allowing every State to send mature, loyal, and knowledgeable representatives to Congress. In our view, the interest possessed by the people of the Nation and identified by the dissent is the same as the people's interest in making sure that, within "reasonable limitations, the door to this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith." The Federalist No. 52, at 326.33 See, e. g., 7 Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies 3816 (F. Thorpe ed. 1909) (hereinafter Thorpe) (Virginia) (members of state legislature must be freeholders); 4 id., at 2460, 2461 (New Hampshire) (freehold824State, Virginia, placed similar restrictions on Members of Congress, requiring that a representative be, inter alia, a "freeholder." See 1788 Va. Acts, ch. 2, § 2.34 Just 15 years after imposing a property qualification, Virginia replaced that requirement with a provision requiring that representatives be only "qualified according to the constitution of the United States." 1813 Va. Acts, ch. 23, § 2. Moreover, several States, including New Hampshire, Georgia, Delaware, and South Carolina, revised their Constitutions at around the time of the Federal Constitution. In the revised Constitutions, each State retained property qualifications for its ownestate of 200 pounds for state senators; estate of 100 pounds, at least half of which is freehold, for state representatives); 3 id., at 1691, 1694 (Maryland) (real and personal property of over 500 pounds for House of Delegates; real and personal property of 1,000 pounds for Senate); id., at 1897, 1898 (freehold estate of 300 pounds or personal estate of 600 pounds for state senators; freehold estate of 100 pounds or ratable estate of 200 pounds for state representatives); 1 id., at 562 (Delaware) (state legislators must be freeholders); 5 id., at 2595 (New Jersey) (members of Legislative Council must be freeholders and must have real and personal property of 1,000 pounds; members of Assembly must have real and personal property of 500 pounds); id., at 2631 (New York) (state senators must be freeholders); id., at 2790 (North Carolina) (100 acres of land for House; 300 acres of land in Senate); 2 id., at 779 (Georgia) (150 acres of land or property of 250 pounds); 6 id., at 3251 (South Carolina) (freehold estate of 2,000 pounds for state senate).34 Judge Tucker expressed doubt about the constitutionality of the provisions of the Virginia statute, noting that "these provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory." 1 W. Blackstone, Commentaries Appendix 213 (S. Tucker ed. 1803). Judge Tucker noted the two primary arguments against the power to add such a qualification:"First, that in a representative government, the people have an undoubted right to judge for themselves of the qualification of their delegate, and if their opinion of the integrity of their representative will supply the want of estate, there can be no reason for the government to interfere, by saying, that the latter must and shall overbalance the former."Secondly; by requiring a qualification in estate it may often happen, that men the best qualified in other respects might be incapacitated from serving their country." Ibid.825state elected officials yet placed no property qualification on its congressional representatives.35The contemporaneous state practice with respect to term limits is similar. At the time of the Convention, States widely supported term limits in at least some circumstances. The Articles of Confederation contained a provision for term limits.36 As we have noted, some members of the Convention had sought to impose term limits for Members of Congress.37 In addition, many States imposed term limits on35 See 4 Thorpe 2477, 2479 (New Hampshire) (100 pounds for House; 200 pounds for Senate); 2 id., at 786 (Georgia) (200 acres of land or 150 pounds for House; 250 acres ofland or 250 pounds for Senate); 6 id., at 3259 (South Carolina) (500 acres and 10 slaves or 150 pounds sterling for House; 300 pounds sterling for Senate); 1 id., at 570, 571 (Delaware) (freehold for House; freehold estate of 200 acres or real and personal property of 1,000 pounds for Senate). Pennsylvania amended its Constitution in 1790. Neither the old constitution nor the amended one contained property qualifications for state representatives. See 5 id., at 3084; id., at 3092-3093.Several State Constitutions also imposed religious qualifications on state representatives. For example, New Hampshire's Constitution of 1784 and its Constitution of 1792 provided that members of the State Senate and House of Representatives be "of the protestant religion." 4 id., at 2460,2461-2462 (1784 Constitution); id., at 2477, 2479 (1792 Constitution). North Carolina's Constitution provided that "no clergyman, or preacher of the gospel, of any denomination, shall be capable of being a member of either the Senate, House of Commons, or Council of State," 5 id., at 2793, and that "no person, who shall deny the being of God or the truth of the Protestant religion ... shall be capable of holding any office or place of trust or profit in the civil department within this State," ibid. Georgia and South Carolina also had religious qualifications in their Constitutions for state legislators, see 2 id., at 779 (Georgia) ("of the Protestant religion"); 6 id., at 3252 (South Carolina) (must be "of the Protestant religion"), but deleted those provisions when they amended their Constitutions, in 1789, see 2 id., at 785, and in 1790, see 6 id., at 3258, respectively. Article VI of the Federal Constitution, however, prohibited States from imposing similar qualifications on federal legislators.36 See 2 Bailyn 926, 927 ("[N]o person shall be capable of being a delegate for more than three years in any term of six years").37 See 1 Farrand 20 ("Res[olved] that the members of the first branch of the National Legislature ought ... to be incapable of re-election for the826state officers,38 four placed limits on delegates to the Continental Congress,39 and several States voiced support for term limits for Members of Congress.40 Despite this widespread support, no State sought to impose any term limits on its own federal representatives. Thus, a proper assessment of contemporaneous state practice provides further persuasive evidence of a general understanding that the qualifications in the Constitution were unalterable by the States.41space of [blank] after the expiration of their term of service"). See also38 See, e. g., G. Wood, Creation of the American Republic, 1776-1787, p. 140 (1969) (noting that 7 of the 10 State Constitutions drafted in 17761777 provided for term limits on their state executives); see also App. to Brief for State Petitioner 1b-34b (describing provisions of State Constitutions).393 Thorpe 1695-1697 (Maryland); 4 id., at 2467 (New Hampshire); 5 id., at 3085 ((Pennsylvania); 5 id., at 2793 (North Carolina).40 New York attached to its ratification a list of proposed amendments and "enjoin[ed] it upon their representatives in Congress to exert all their influence, and use all reasonable means, to obtain a ratification." 1 Elliot's Debates 329. One of the proposed amendments was "That no person be eligible as a senator for more than six years in any term of twelve years." Id., at 330. In Virginia, the Convention similarly "enjoin[ed] it upon their representatives," 2 Bailyn 564, to adopt "a Declaration or Bill of Rights," id., at 558, which would include the statement that members of the Executive and Legislative Branches "should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct," id., at 559. The North Carolina Convention proposed nearly identical language, see id., at 566, though that Convention ultimately did not ratify the Constitution, see 4 Elliot's Debates 250-251. Thus, at least three States proposed some form of constitutional amendment supporting term limits for Members of Congress.41 Petitioners and the dissent also point out that Georgia, Maryland, Massachusetts, Virginia, and North Carolina added district residency requirements, and petitioners note that New Jersey and Connecticut established nominating processes for congressional candidates. They rely on827In sum, the available historical and textual evidence, read in light of the basic principles of democracy underlying the Constitution and recognized by this Court in Powell, reveal the Framers' intent that neither Congress nor the States should possess the power to supplement the exclusive qualifications set forth in the text of the Constitution.these facts to show that the States believed they had the power to add qualifications. We again are unpersuaded. First, establishing a nominating process is no more setting a qualification for office than is creating a primary. Second, it seems to us that States may simply have viewed district residency requirements as the necessary analog to state residency requirements. Thus, state practice with respect to residency requirements does not necessarily indicate that States believed that they had a broad power to add restrictions. Finally, we consider the number of state-imposed qualifications to be remarkably small. Despite the array of property, religious, and other qualifications that were contained in State Constitutions, petitioners and the dissent can point to only one instance of a state-imposed property qualification on candidates for Congress, and five instances of district residency requirements. The state practice seems to us notable for its restraint, and thus supports the conclusion that States did not believe that they generally had the power to add qualifications.Nor are we persuaded by the more recent state practice involving qualifications such as those that bar felons from being elected. As we have noted, the practice of States is a poor indicator of the effect of restraints on the States, and no court has ever upheld one of these restrictions. Moreover, as one moves away from 1789, it seems to us that state practice is even less indicative of the Framers' understanding of state power.Finally, it is important to reemphasize that the dissent simply has no credible explanation as to why almost every State imposed property qualifications on state representatives but not on federal representatives. The dissent relies first on the obvious but seemingly irrelevant proposition that the state legislatures were larger than state congressional delegations. Post, at 913-914, n. 37. If anything, the smaller size of the congressional delegation would have made States more likely to put qualifications on federal representatives since the election of any "pauper" would have had proportionally greater significance. The dissent also suggests that States failed to add qualifications out of fear that others, e. g., Congress, believed that States lacked the power to add such qualifications. Of course, this rationale is perfectly consistent with our view that the general understanding at the time was that States lacked the power to add qualifications.828IVPetitioners argue that, even if States may not add qualifications, Amendment 73 is constitutional because it is not such a qualification, and because Amendment 73 is a permissible exercise of state power to regulate the "Times, Places and Manner of holding Elections." We reject these contentions.Unlike §§ 1 and 2 of Amendment 73, which create absolute bars to service for long-term incumbents running for state office, § 3 merely provides that certain Senators and Representatives shall not be certified as candidates and shall not have their names appear on the ballot. They may run as write-in candidates and, if elected, they may serve. Petitioners contend that only a legal bar to service creates an impermissible qualification, and that Amendment 73 is therefore consistent with the Constitution.Petitioners support their restrictive definition of qualifications with language from Storer v. Brown, 415 U. S. 724 (1974), in which we faced a constitutional challenge to provisions of the California Elections Code that regulated the procedures by which both independent candidates and candidates affiliated with qualified political parties could obtain ballot position in general elections. The code required candidates affiliated with a qualified party to win a primary election, and required independents to make timely filing of nomination papers signed by at least 5% of the entire vote cast in the last general election. The code also denied ballot position to independents who had voted in the most recent primary election or who had registered their affiliation with a qualified party during the previous year.In Storer, we rejected the argument that the challenged procedures created additional qualifications as "wholly without merit." Id., at 746, n. 16. We noted that petitioners "would not have been disqualified had they been nominated at a party primary or by an adequately supported independent petition and then elected at the general election." Ibid.829We concluded that the California Code "no more establishes an additional requirement for the office of Representative than the requirement that the candidate win the primary to secure a place on the general ballot or otherwise demonstrate substantial community support." Ibid. See also Joyner v. Mofford, 706 F. 2d, at 1531; Hopfmann v. Connolly, 746 F.2d 97, 103 (CA1 1984), vacated in part on other grounds, 471 U. S. 459 (1985). Petitioners maintain that, under Storer, Amendment 73 is not a qualification.We need not decide whether petitioners' narrow understanding of qualifications is correct because, even if it is, Amendment 73 may not stand. As we have often noted, " '[c]onstitutional rights would be of little value if they could be ... indirectly denied.''' Harman v. Forssenius, 380 U. S. 528, 540 (1965), quoting Smith v. Allwright, 321 U. S. 649, 664 (1944). The Constitution "nullifies sophisticated as well as simple-minded modes" of infringing on constitutional protections. Lane v. Wilson, 307 U. S. 268, 275 (1939); HarmanIn our view, Amendment 73 is an indirect attempt to accomplish what the Constitution prohibits Arkansas from accomplishing directly. As the plurality opinion of the Arkansas Supreme Court recognized, Amendment 73 is an "effort to dress eligibility to stand for Congress in ballot access clothing," because the "intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service." 316 Ark., at 266, 872 S. W. 2d, at 357.42 We must, of course, accept the state court's view of the purpose of its own law: We are thus authoritatively informed that the sole purpose of § 3 of Amendment 73 was to attempt to achieve a result that is forbidden by the Federal Constitution. In-42Justice Dudley noted in his concurrence: "I am reassured by the style of this case, U. S. Term Limits, Inc. That name implies just what this amendment is: A practical limit on the terms of the members of the Congress." 316 Ark., at 276, 872 S. W. 2d, at 364 (opinion concurring in part and dissenting in part).830deed, it cannot be seriously contended that the intent behind Amendment 73 is other than to prevent the election of incumbents. The preamble of Amendment 73 states explicitly: "[T]he people of Arkansas ... herein limit the terms of elected officials." Sections 1 and 2 create absolute limits on the number of terms that may be served. There is no hint that § 3 was intended to have any other purpose.Petitioners do, however, contest the Arkansas Supreme Court's conclusion that the amendment has the same practical effect as an absolute bar. They argue that the possibility of a write-in campaign creates a real possibility for victory, especially for an entrenched incumbent. One may reasonably question the merits of that contention.43 Indeed, we are advised by the state court that there is nothing more than a faint glimmer of possibility that the excluded candidate will win.44 Our prior cases, too, have suggested that43 The uncontested data submitted to the Arkansas Supreme Court indicate that, in over 1,300 Senate elections since the passage of the Seventeenth Amendment in 1913, only 1 has been won by a write-in candidate. In over 20,000 House elections since the turn of the century, only 5 have been won by write-in candidates. App. 201-202. Indeed, it is for this reason that the Arkansas Supreme Court found the possibility of a write-in victory to be a mere "glimme[r] of opportunity for those disqualified." 316 Ark., at 266, 872 S. W. 2d, at 357; see also id., at 276, 872 S. W. 2d, at 364 (Dudley, J., concurring in part and dissenting in part) ("as a practical matter, the amendment would place term limits on service in the Congress").44 Contrary to the dissent, post, at 919-920, we read a majority of the Arkansas Supreme Court as holding that Amendment 73 has the same practical effect as an absolute bar. See 316 Ark., at 266, 872 S. W. 2d, at 357 (plurality opinion) (the "intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service"); id., at 276, 872 S. W. 2d, at 364 (Dudley, J., concurring in part and dissenting in part) ("That name implies just what this amendment is: A practical limit on the terms of the members of the Congress"). However, as we note in the text, infra, at 831, we do not rely on the state court's finding on this point. See also infra, at 836.831write-in candidates have only a slight chance of victory.45 But even if petitioners are correct that incumbents may occasionally win reelection as write-in candidates, there is no denying that the ballot restrictions will make it significantly more difficult for the barred candidate to win the election. In our view, an amendment with the avowed purpose and obvious effect of evading the requirements of the Qualifications Clauses by handicapping a class of candidates cannot stand. To argue otherwise is to suggest that the Framers spent significant time and energy in debating and crafting Clauses that could be easily evaded. More importantly, allowing States to evade the Qualifications Clauses by "dress[ing] eligibility to stand for Congress in ballot access clothing" trivializes the basic principles of our democracy that underlie those Clauses. Petitioners' argument treats the Qualifications Clauses not as the embodiment of a grand principle, but rather as empty formalism. "'It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.'" Gomillion v. Lightfoot, 364 U. S. 339, 345 (1960), quoting Frost & Frost Trucking Co. v. Railroad Comm'n of Cal., 271 U. S. 583, 594 (1926).45 We noted in Lubin v. Panish, 415 U. S. 709 (1974), that "[t]he realities of the electoral process ... strongly suggest that 'access' via write-in votes falls far short of access in terms of having the name of the candidate on the ballot." Id., at 719, n. 5; see also Anderson v. Celebrezze, 460 U. S. 780, 799, n. 26 (1983) ("We have previously noted that [a write-in] opportunity is not an adequate substitute for having the candidates name appear on the printed ballot"); United States v. Classic, 313 U. S. 299, 313 (1941) ("Even if ... voters may lawfully write into their ballots, cast at the general election, the name of a candidate rejected at the primary and have their ballots counted, the practical operation of the primary law ... is such as to impose serious restrictions upon the choice of candidates by the voters"); Burdick v. Takushi, 504 U. S. 428,437, n. 7 (1992) ("If the dissent were correct in suggesting that requiring primary voters to select a specific ballot impermissibly burdened the right to vote, it is clear under our decisions that the availability of a write-in option would not provide an adequate remedy").832Petitioners make the related argument that Amendment 73 merely regulates the "Manner" of elections, and that the amendment is therefore a permissible exercise of state power under Article I, § 4, cl. 1 (the Elections Clause), to regulate the "Times, Places and Manner" of elections.46 We cannot agree.A necessary consequence of petitioners' argument is that Congress itself would have the power to "make or alter" a measure such as Amendment 73. Art. I, § 4, cl. 1. See Smiley v. Holm, 285 U. S. 355, 366-367 (1932) ("[T]he Congress may supplement these state regulations or may substitute its own"). That the Framers would have approved of such a result is unfathomable. As our decision in Powell and our discussion above make clear, the Framers were particularly concerned that a grant to Congress of the authority to set its own qualifications would lead inevitably to congressional self-aggrandizement and the upsetting of the delicate constitutional balance. See supra, at 790-791, and n. 10, supra. Petitioners would have us believe, however, that even as the Framers carefully circumscribed congressional power to set qualifications, they intended to allow Congress to achieve the same result by simply formulating the regulation as a ballot access restriction under the Elections Clause. We refuse to adopt an interpretation of the Elections Clause that would so cavalierly disregard what the Framers intended to be a fundamental constitutional safeguard.Moreover, petitioners' broad construction of the Elections Clause is fundamentally inconsistent with the Framers' view of that Clause. The Framers intended the Elections Clause to grant States authority to create procedural regulations, not to provide States with license to exclude classes of candi-46 Article I, § 4, cl. 1, provides:"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."833dates from federal office. During the Convention debates, for example, Madison illustrated the procedural focus of the Elections Clause by noting that it covered "[w]hether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, sh[oul]d all vote for all the representatives; or all in a district vote for a number allotted to the district." 2 Farrand 240. Similarly, during the ratification debates, proponents of the Constitution noted: "[T]he power over the manner only enables them to determine how these electors shall elect-whether by ballot, or by vote, or by any other way." 4 Elliot's Debates 71 (Steele statement at North Carolina ratifying convention) (emphasis in original).47Hamilton made a similar point in The Federalist No. 60, in which he defended the Constitution's grant to Congress of the power to override state regulations. Hamilton expressly distinguished the broad power to set qualifications from the limited authority under the Elections Clause, noting that"there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections." The Federalist No. 60, at 371 (emphasis in original).As Hamilton's statement suggests, the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate47See also "The Republican," Connecticut Courant (Hartford, Jan. 7, 1788), 1 Bailyn 710, 713 ("The constitution expressly provides that the choice shall be by the people, which cuts off both from the general and state Legislatures the power of so regulating the mode of election, as to deprive the people of a fair choice").834electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.Our cases interpreting state power under the Elections Clause reflect the same understanding. The Elections Clause gives States authority "to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved." Smiley v. Holm, 285 U. S., at 366. However, "[t]he power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights." Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986). States are thus entitled to adopt "generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Anderson v. Celebrezze, 460 U. S. 780, 788, n. 9 (1983). For example, in Storer v. Brown, 415 U. S. 724 (1974), the case on which petitioners place principal reliance, we upheld the validity of certain provisions of the California Elections Code. In so doing, we emphasized the States' interest in having orderly, fair, and honest elections "rather than chaos." Id., at 730. We also recognized the "States' strong interest in maintaining the integrity of the political process by preventing interparty raiding," id., at 731, and explained that the specific requirements applicable to independents were "expressive of a general state policy aimed at maintaining the integrity of the various routes to the ballot," id., at 733. In other cases, we have approved the States' interests in avoiding "voter confusion, ballot overcrowding, or the presence of frivolous candidacies," Munro v. Socialist Workers Party, 479 U. S. 189, 194-195 (1986), in "seeking to assure that elections are operated equitably and efficiently," Burdick v. Takushi, 504 U. S., at 433, and in "guard[ing] against irregularity and error in the tabulation of votes," Roudebush v. Hartke, 405 U. S. 15, 25 (1972). In short, we have approved of state regulations designed to ensure that835elections are "'fair and honest and ... [that] some sort of order, rather than chaos, ... accompan[ies] the democratic processes.'" Burdick v. Takushi, 504 U. S., at 433, quoting Storer, 415 U. S., at 730.The provisions at issue in Storer and our other Elections Clause cases were thus constitutional because they regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position. They served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress. And they did not involve measures that exclude candidates from the ballot without reference to the candidates' support in the electoral process. Our cases upholding state regulations of election procedures thus provide little support for the contention that a state-imposed ballot access restriction is constitutional when it is undertaken for the twin goals of disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clauses.4848Nor does Clements v. Fashing, 457 U. S. 957 (1982), support petitioners. In Clements, the Court rejected First and Fourteenth Amendment challenges to Texas' so-called "resign-to-run" provision. That provision treated an elected state official's declaration of candidacy for another elected office as an automatic resignation from the office then held. We noted that the regulation was a permissible attempt to regulate state officeholders. See id., at 972 ("Appellees are elected state officeholders who contest restrictions on partisan political activity") (emphasis deleted); id., at 974, n. 1 (STEVENS, J., concurring in part and concurring in judgment) ("The fact that appellees hold state office is sufficient to justify a restriction on their ability to run for other office that is not imposed on the public generally"). As the Ninth Circuit recognized in upholding a similar resign-to-run statute from Arizona: "The burden on candidacy ... is indirect and attributable to a desire to regulate state officeholders and not to impose additional qualifications to serving in Congress." Joyner v. Mofford, 706 F.2d 1523, 1528 (1983); see also Signorelli v. Evans, 637 F. 2d836We do not understand the dissent to contest our primary thesis, namely, that if the qualifications for Congress are fixed in the Constitution, then a state-passed measure with the avowed purpose of imposing indirectly such an additional qualification violates the Constitution. The dissent, instead, raises two objections, challenging the assertion that the Arkansas amendment has the likely effect of creating a qualification, post, at 917-919, and suggesting that the true intent of Amendment 73 was not to evade the Qualifications Clauses but rather to simply "level the playing field," post, at 922. N either of these objections has merit.As to the first, it is simply irrelevant to our holding today.As we note above in n. 45, our prior cases strongly suggest that write-in candidates will have only a slim chance of success, and the Arkansas plurality agreed. However, we expressly do not rest on this Court's prior observations regarding write-in candidates. Instead, we hold that a state amendment is unconstitutional when it has the likely effect of handicapping a class of candidates and has the sole purpose of creating additional qualifications indirectly. Thus, the dissent's discussion of the evidence concerning the possibility that a popular incumbent will win a write-in election is simply beside the point.As to the second argument, we find wholly unpersuasive the dissent's suggestion that Amendment 73 was designed merely to "level the playing field." As we have noted, supra, at 829-830, it is obvious that the sole purpose of Amendment 73 was to limit the terms of elected officials, both state and federal, and that Amendment 73, therefore, may not stand.853,859 (CA2 1980) ("New York's purpose is to regulate the judicial office that [the candidate] holds, not the Congressional office he seeks"). Moreover, as now-Chief Judge Newman observed while upholding similar restrictions imposed by New York, such provisions "plac[e] no obstacle between [a candidate] and the ballot or his nomination or his election. He is free to run and the people are free to choose him." Id., at 858.837vThe merits of term limits, or "rotation," have been the subject of debate since the formation of our Constitution, when the Framers unanimously rejected a proposal to add such limits to the Constitution. The cogent arguments on both sides of the question that were articulated during the process of ratification largely retain their force today. Over half the States have adopted measures that impose such limits on some offices either directly or indirectly, and the N ation as a whole, notably by constitutional amendment, has imposed a limit on the number of terms that the President may serve.49 Term limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. It is not our province to resolve this longstanding debate.We are, however, firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather-as have other important changes in the electoral process 50_through the amendment procedures set forth in Article V. The Framers decided that the qualifications for service in the Congress of the United States be fixed in the Constitution and be uniform throughout the Nation. That decision reflects the Framers' understanding that Members of Congress are chosen by separate constituencies, but that49 See U. S. Const., Arndt. 22 (1951) (limiting Presidents to two 4-year terms).50 See, e. g., Arndt. 17 (1913) (direct elections of Senators); Arndt. 19 (1920) (extending suffrage to women); Arndt. 22 (1951) (Presidential term limits); Arndt. 24 (1964) (prohibition against poll taxes); Arndt. 26 (1971) (lowering age of voter eligibility to 18).838they become, when elected, servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government. In the absence of a properly passed constitutional amendment, allowing individual States to craft their own qualifications for Congress would thus erode the structure envisioned by the Framers, a structure that was designed, in the words of the Preamble to our Constitution, to form a "more perfect Union."The judgment is affirmed.It is so ordered

OCTOBER TERM, 1994Syllabusu. S. TERM LIMITS, INC., ET AL. v. THORNTON ET AL.CERTIORARI TO THE SUPREME COURT OF ARKANSAS No. 93-1456. Argued November 29, 1994-Decided May 22,1995*Respondent Hill filed this suit in Arkansas state court challenging the constitutionality of § 3 of Amendment 73 to the Arkansas Constitution, which prohibits the name of an otherwise-eligible candidate for Congress from appearing on the general election ballot if that candidate has already served three terms in the House of Representatives or two terms in the Senate. The trial court held that § 3 violated Article I of the Federal Constitution, and the Arkansas Supreme Court affirmed. A plurality of the latter court concluded that the States have no authority "to change, add to, or diminish" the age, citizenship, and residency requirements for congressional service enumerated in the Qualifications Clauses, U. S. Const., Art. I, § 2, cl. 2, and Art. I, § 3, cl. 3, and rejected the argument that Amendment 73 is constitutional because it is formulated as a ballot access restriction rather than an outright disqualification of congressional incumbents.Held: Section 3 of Amendment 73 to the Arkansas Constitution violates the Federal Constitution. Pp. 787-838.(a) The power granted to each House of Congress to judge the "Qualifications of its own Members," Art. I, § 5, cl. 1, does not include the power to alter or add to the qualifications set forth in the Constitution's text. Powell v. McCormack, 395 U. S. 486, 540. After examining Powell's analysis of the Qualifications Clauses' history and text, id., at 518-548, and its articulation of the "basic principles of our democratic system," id., at 548, this Court reaffirms that the constitutional qualifications for congressional service are "fixed," at least in the sense that they may not be supplemented by Congress. Pp. 787-798.(b) So too, the Constitution prohibits States from imposing congressional qualifications additional to those specifically enumerated in its text. Petitioners' argument that States possess control over qualifications as part of the original powers reserved to them by the Tenth Amendment is rejected for two reasons. First, the power to add qualifications is not within the States' pre-Tenth Amendment "original powers," but is a new right arising from the Constitution itself, and thus is*Together with No. 93-1828, Bryant, Attorney General of Arkansas v.Hill et al., also on certiorari to the same court.780Syllabusnot reserved. Second, even if the States possessed some original power in this area, it must be concluded that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby "divested" States of any power to add qualifications. That this is so is demonstrated by the unanimity among the courts and learned commentators who have considered the issue; by the Constitution's structure and the text of pertinent constitutional provisions, including Art. I, § 2, cl. 1, Art. I, § 4, cl. 1, Art. I, § 6, and Art. I, § 5, cl. 1; by the relevant historical materials, including the records of the Constitutional Convention and the ratification debates, as well as Congress' subsequent experience with state attempts to impose qualifications; and, most importantly, by the "fundamental principle of our representative democracy ... 'that the people should choose whom they please to govern them,'" Powell, 395 U. S., at 547. Permitting individual States to formulate diverse qualifications for their congressional representatives would result in a patchwork that would be inconsistent with the Framers' vision of a uniform National Legislature representing the people of the United States. The fact that, immediately after the adoption of the Constitution, many States imposed term limits and other qualifications on state officers, while only one State imposed such a qualification on Members of Congress, provides further persuasive evidence of a general understanding that the qualifications in the Constitution were unalterable by the States. Pp. 798-827.(c) A state congressional term limits measure is unconstitutional when it has the likely effect of handicapping a class of candidates and has the sole purpose of creating additional qualifications indirectly. The Court rejects petitioners' argument that Amendment 73 is valid because it merely precludes certain congressional candidates from being certified and having their names appear on the ballot, and allows them to run as write-in candidates and serve if elected. Even if petitioners' narrow understanding of qualifications is correct, Amendment 73 must fall because it is an indirect attempt to evade the Qualifications Clauses' requirements and trivializes the basic democratic principles underlying those Clauses. Nor can the Court agree with petitioners' related argument that Amendment 73 is a permissible exercise of state power under the Elections Clause, Art. I, § 4, cl. 1, to regulate the "Times, Places and Manner of holding Elections." A necessary consequence of that argument is that Congress itself would have the power under the Elections Clause to "make or alter" a measure such as Amendment 73, a result that is unfathomable under Powell. Moreover, petitioners' broad construction is fundamentally inconsistent with the Framers' view of the Elections Clause, which was intended to grant States authority to protect the integrity and regularity of the election process by regulating781Full Text of Opinion

1984_83-1020

JUSTICE WHITE delivered the opinion of the Court.Petitioner State of Ohio obtained an injunction ordering respondent William Kovacs to clean up a hazardous waste site. A receiver was subsequently appointed. Still later, Kovacs filed a petition for bankruptcy. The question before us is whether, in the circumstances present here, Kovacs' obligation under the injunction is a "debt" or "liability on a claim" subject to discharge under the Bankruptcy Code. Page 469 U. S. 276IKovacs was the chief executive officer and stockholder of Chem-Dyne Corp., which with other business entities operated an industrial and hazardous waste disposal site in Hamilton, Ohio. In 1976, the State sued Kovacs and the business entities in state court for polluting public waters, maintaining a nuisance, and causing fish kills, all in violation of state environmental laws. In 1979, both in his individual capacity and on behalf of Chem-Dyne, Kovacs signed a stipulation and judgment entry settling the lawsuit. Among other things, the stipulation enjoined the defendants from causing further pollution of the air or public waters, forbade bringing additional industrial wastes onto the site, required the defendants to remove specified wastes from the property, and ordered the payment of $75,000 to compensate the State for injury to wildlife.Kovacs and the other defendants failed to comply with their obligations under the injunction. The State then obtained the appointment in state court of a receiver, who was directed to take possession of all property and other assets of Kovacs and the corporate defendants and to implement the judgment entry by cleaning up the Chem-Dyne site. The receiver took possession of the site, but had not completed his tasks when Kovacs filed a personal bankruptcy petition. [Footnote 1]Seeking to develop a basis for requiring part of Kovacs' post-bankruptcy income to be applied to the unfinished task of the receivership, the State then filed a motion in state court to discover Kovacs' current income and assets. Kovacs requested that the Bankruptcy Court stay those proceedings, which it did. [Footnote 2] The State also filed a complaint in the Bankruptcy Page 469 U. S. 277 Court seeking a declaration that Kovacs' obligation under the stipulation and judgment order to clean up the Chem-Dyne site was not dischargeable in bankruptcy because it was not a "debt," a liability on a "claim," within the meaning of the Bankruptcy Code. In addition, the complaint sought an injunction against the bankruptcy trustee to restrain him from pursuing any action to recover assets of Kovacs in the hands of the receiver. The Bankruptcy Court ruled against Ohio, In re Kovacs, 29 B.R. 816 (SD Ohio 1982), as did the District Court. The Court of Appeals for the Sixth Circuit affirmed, holding that Ohio essentially sought from Kovacs only a monetary payment, and that such a required payment was a liability on a claim that was dischargeable under the bankruptcy statute. In re Kovacs, 717 F.2d 984 (1983). We granted certiorari to determine the dischargeability of Kovacs' obligation under the affirmative injunction entered against him. 465 U.S. 1078 (1984).IIKovacs alleges that the Army Corps of Engineers, using funds recovered from those concerns that generated the wastes, has removed all industrial wastes from the site and that, if he has an obligation to pay those expenses, the obligation is owed to the United States, not the State. Kovacs urges that the case is therefore moot. The State argues that the case is not moot, because the removal of the barrels and Page 469 U. S. 278 wastes from the surface did not satisfy all of Kovacs' obligations to clean up the site; it is said that the ground itself remains permeated with toxic materials that must be removed if further pollution of the public waters is to be avoided. We perceive nothing feigned or frivolous about the State's submission. Sibron v. New York, 392 U. S. 40, 392 U. S. 57 (1968). The State surely has a stake in the outcome of this case, United States Parole Comm'n v. Geraghty, 445 U. S. 388, 445 U. S. 397 (1980), which in our view is not moot. We proceed to the merits.IIIExcept for the nine kinds of debts saved from discharge by 11 U.S.C. § 523(a), a discharge in bankruptcy discharges the debtor from all debts that arose before bankruptcy. § 727(b). It is not claimed here that Kovacs' obligation under the injunction fell within any of the categories of debts excepted from discharge by § 523. Rather, the State submits that the obligation to clean up the Chem-Dyne site is not a debt at all within the meaning of the bankruptcy law.For bankruptcy purposes, a debt is a liability on a claim. § 101(11). A claim is defined by § 101(4) as follows:"(4) 'claim' means -- ""(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or""(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured."The provision at issue here is § 101(4)(B). For the purposes of that section, there is little doubt that the State had the right to an equitable remedy under state law and that the Page 469 U. S. 279 right has been reduced to judgment in the form of an injunction ordering the cleanup. The State argues, however, that the injunction it has secured is not a claim against Kovacs for bankruptcy purposes because (1) Kovacs' default was a breach of the statute, not a breach of an ordinary commercial contract which concededly would give rise to a claim; and (2) Kovacs' breach of his obligation under the injunction did not give rise to a right to payment within the meaning of § 101(4)(B). We are not persuaded by either submission.There is no indication in the language of the statute that the right to performance cannot be a claim unless it arises from a contractual arrangement. The State resorted to the courts to enforce its environmental laws against Kovacs and secured a negative order to cease polluting, an affirmative order to clean up the site, and an order to pay a sum of money to recompense the State for damage done to the fish population. Each order was one to remedy an alleged breach of Ohio law; and if Kovacs' obligation to pay $75,000 to the State is a debt dischargeable in bankruptcy, which the State freely concedes, it makes little sense to assert that, because the cleanup order was entered to remedy a statutory violation, it cannot likewise constitute a claim for bankruptcy purposes. Furthermore, it is apparent that Congress desired a broad definition of a "claim" [Footnote 3] and knew how to limit the application of a provision to contracts when it desired to do so. [Footnote 4] I Other provisions cited by Ohio refute, rather than support, its strained interpretation. [Footnote 5] Page 469 U. S. 280The courts below also found little substance in the submission that the cleanup obligation did not give rise to a right to payment that renders the order dischargeable under § 727. The definition of "claim" in H.R. 8200 as originally drafted would have deemed a right to an equitable remedy for breach of performance a claim even if it did not give rise to a right to payment. [Footnote 6] The initial Senate definition of claim was narrower, [Footnote 7] and a compromise version, § 101(4), was finally adopted. In that version, the key phrases "equitable remedy," "breach of performance," and "right to payment" are not defined. See 11 U.S.C. § 101. Nor are the differences between the successive versions explained. The legislative history offers only a statement by the sponsors of the Bankruptcy Reform Act with respect to the scope of the provision:"Section 101(4)(B) . . . is intended to cause the liquidation or estimation of contingent rights of payment for which there may be an alternative equitable remedy with the result that the equitable remedy will be susceptible to being discharged in bankruptcy. For example, in some States, a judgment for specific performance may be satisfied by an alternative right to payment in the event performance is refused; in that event, the creditor entitled to specific performance would have a 'claim' for purposes of a proceeding under title 11. [Footnote 8]"We think the rulings of the courts below were wholly consistent with the statute and its legislative history, sparse as it is. The Bankruptcy Court ruled as follows, In re Kovacs, 29 B.R. at 818: Page 469 U. S. 281"There is no suggestion by plaintiff that defendant can render performance under the affirmative obligation other than by the payment of money. We therefore conclude that plaintiff has a claim against defendant within the meaning of 11 U.S.C. § 101(4), and that defendant owes plaintiff a debt within the meaning of 11 U.S.C. § 101(11). Furthermore, we have concluded that that debt is dischargeable. [Footnote 9]"The District Court affirmed, primarily because it was bound by and saw no error in the Court of Appeals' prior opinion holding that the State was seeking no more than a money judgment as an alternative to requiring Kovacs personally to perform the obligations imposed by the injunction. To hold otherwise, the District Court explained, "would subvert Page 469 U. S. 282 Congress' clear intention to give debtors a fresh start." App. JA-16. The Court of Appeals also affirmed, rejecting the State's insistence that it had no right to, and was not attempting to enforce, an alternative right to payment:"Ohio does not suggest that Kovacs is capable of personally cleaning up the environmental damage he may have caused. Ohio claims there is no alternative right to payment, but when Kovacs failed to perform, state law gave a state receiver total control over all Kovacs' assets. Ohio later used state law to try and discover Kovacs' post-petition income and employment status in an apparent attempt to levy on his future earnings. In reality, the only type of performance in which Ohio is now interested is a money payment to effectuate the Chem-Dyne cleanup.""* * * *" "The impact of its attempt to realize upon Kovacs' income or property cannot be concealed by legerdemain or linguistic gymnastics. Kovacs cannot personally clean up the waste he wrongfully released into Ohio waters. He cannot perform the affirmative obligations properly imposed upon him by the State court except by paying money or transferring over his own financial resources. The State of Ohio has acknowledged this by its steadfast pursuit of payment as an alternative to personal performance."717 F.2d at 987-988. As we understand it, the Court of Appeals held that, in the circumstances, the cleanup duty had been reduced to a monetary obligation.We do not disturb this judgment. The injunction surely obliged Kovacs to clean up the site. But when he failed to do so, rather than prosecute Kovacs under the environmental laws or bring civil or criminal contempt proceedings, the State secured the appointment of a receiver, who was ordered to take possession of all of Kovacs' nonexempt assets as Page 469 U. S. 283 well as the assets of the corporate defendants and to comply with the injunction entered against Kovacs. As wise as this course may have been, it dispossessed Kovacs, removed his authority over the site, and divested him of assets that might have been used by him to clean up the property. Furthermore, when the bankruptcy trustee sought to recover Kovacs' assets from the receiver, the latter sought an injunction against such action. Although Kovacs had been ordered to "cooperate" with the receiver, he was disabled by the receivership from personally taking charge of and carrying out the removal of wastes from the property. What the receiver wanted from Kovacs after bankruptcy was the money to defray cleanup costs. At oral argument in this Court, the State's counsel conceded that after the receiver was appointed, the only performance sought from Kovacs was the payment of money. Tr. of Oral Arg.19-20. Had Kovacs furnished the necessary funds, either before or after bankruptcy, there seems little doubt that the receiver and the State would have been satisfied. On the facts before it, and with the receiver in control of the site, [Footnote 10] we cannot fault the Court of Appeals for concluding that the cleanup order had been converted into an obligation to pay money, an obligation that was dischargeable in bankruptcy. [Footnote 11] Page 469 U. S. 284IVIt is well to emphasize what we have not decided. First, we do not suggest that Kovacs' discharge will shield him from prosecution for having violated the environmental laws of Ohio or for criminal contempt for not performing his obligations under the injunction prior to bankruptcy. Second, had a fine or monetary penalty for violation of state law been imposed on Kovacs prior to bankruptcy, § 523(a)(7) forecloses any suggestion that his obligation to pay the fine or penalty would be discharged in bankruptcy. Third, we do not address what the legal consequences would have been had Kovacs taken bankruptcy before a receiver had been appointed and a trustee had been designated with the usual duties of a bankruptcy trustee. [Footnote 12] Fourth, we do not hold Page 469 U. S. 285 that the injunction against bringing further toxic wastes on the premises or against any conduct that will contribute to the pollution of the site or the State's waters is dischargeable in bankruptcy; we here address, as did the Court of Appeals, only the affirmative duty to clean up the site and the duty to pay money to that end. Finally, we do not question that anyone in possession of the site -- whether it is Kovacs or another in the event the receivership is liquidated and the trustee abandons the property, or a vendee from the receiver or the bankruptcy trustee -- must comply with the environmental laws of the State of Ohio. Plainly, that person or firm may not maintain a nuisance, pollute the waters of the State, or refuse to remove the source of such conditions. As the case comes to us, however, Kovacs has been dispossessed and the State seeks to enforce his cleanup obligation by a money judgment.The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtOhio v. Kovacs, 469 U.S. 274 (1985)Ohio v. KovacsNo. 83-1020Argued October 10, 1984Decided January 9, 1985469 U.S. 274SyllabusPetitioner State of Ohio obtained an injunction in state court ordering respondent and other defendants to clean up a hazardous waste disposal site. When the injunction was not complied with, the State obtained the appointment in state court of a receiver, who was directed to take possession of the defendants' property and other assets and to implement the injunction. The receiver took possession of the site but had not completed his tasks when respondent filed a personal bankruptcy petition. Seeking to require part of respondent's post-bankruptcy income to be applied to the receiver's unfinished tasks, the State filed a motion in state court to discover respondent's income and assets. At respondent's request, the Bankruptcy Court stayed these proceedings. The State then filed a complaint in the Bankruptcy Court seeking a declaration that respondent's obligation under the state injunction was not dischargeable in bankruptcy because it was not a "debt" or "liability on a claim" within the meaning of the Bankruptcy Code. For bankruptcy purposes, a debt is a liability on a claim. Section 101(4)(B) of the Bankruptcy Code in pertinent part defines a claim as the"right to an equitable remedy for breach of performance if such breach gives rise to a right of payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured."The Bankruptcy Court ruled against the State, as did the District Court. The Court of Appeals affirmed, holding that the State essentially sought from respondent only a monetary payment, and that such a required payment was a liability on a claim that was dischargeable under the Bankruptcy Code.Held:1. The fact that the Army Corps of Engineers, using funds recovered from those concerns that generated the wastes in question, has removed the wastes from the site does not render the case moot. The State still has a stake in the outcome of the case based on its claim that the removal of the wastes did not satisfy all of respondent's obligation to clean up the site since the ground remains permeated with toxic materials that must be removed to avoid further pollution. Pp. 469 U. S. 277-278.2. Respondent's obligation under the injunction is a "debt" or "liability on a claim" subject to discharge under the Bankruptcy Code. Contrary Page 469 U. S. 275 to the State's contention, there is no indication in the language of 101(4)(B) that the right to performance cannot be a claim unless it arises from a contractual arrangement. Moreover, it is apparent that Congress desired a broad definition of a "claim" and knew how to limit the application of a provision to contracts when it desired to do so. Where it is clear that what the receiver wanted from respondent after bankruptcy was the money to defray cleanup costs, the Court of Appeals did not err in concluding that the cleanup order had been converted into an obligation to pay money, an obligation that was dischargeable in bankruptcy. Pp. 469 U. S. 278-283.717 F.2d 984, affirmed.WHITE, .J., delivered the opinion for a unanimous Court. O'CONNOR, J., filed a concurring opinion, post, p. 469 U. S. 285.

1959_18

MR. JUSTICE BRENNAN delivered the opinion of the Court.The National Bituminous Coal Wage Agreement of 1950, a collective bargaining agreement between coal operators and the United Mine Workers of America, provides for a union welfare fund meeting the requirements of § 302(c)(5) of the Taft-Hartley Act. [Footnote 1] The Page 361 U. S. 461 fund is the "United Mine Workers of America Welfare and Retirement Fund of 1950." Each signatory coal operator agreed to pay into the fund a royalty of 30�, later increased to 40�, for each ton of coal produced for use or for sale.Benedict Coal Corporation, the respondent in both No. 18 and No. 19, is a signatory coal operator. From Page 361 U. S. 462 March 5, 1950, through July, 1953, Benedict produced coal upon which the amount of royalty was calculated to be $177,762.92. Benedict paid $101,258.68 of this amount, but withheld $76,504.24. The petitioners in No, 18, who are the trustees of the fund, brought this action to recover that balance in the District Court for the eastern District of Tennessee. [Footnote 2] Benedict's main defense was that the performance of the duty to pay royalty to the trustees, regarding them as third-party beneficiaries of the collective bargaining agreement, was excused when the promisee contracting party, the union and its District 28 -- who are the petitioners in No. 19 and who will be referred to as the union -- violated the agreement by strikes and stoppages of work. Benedict also cross-claimed against the union for damages sustained from the strikes and stoppages. By its answer to the cross-claim, the union denied that its conduct violated the agreement.The jury, using a verdict form provided by the trial judge, found that the trustees were entitled to recover the full amount of the unpaid royalty, but that Benedict was entitled to a setoff of $81,017.68; the jury also gave a verdict to Benedict for that sum on its cross-claim against the union. In a single entry, two judgments were entered on this verdict. One was a judgment in favor of Benedict on its cross-claim on which immediate execution was ordered, but with direction that the sum collected from the union be paid into the registry of the court. The other was a judgment in favor of the trustees for the unpaid balance of the royalty. However, effect was given to Benedict's defense in the trustees' suit by refusing immediate execution, and interest, on the trustees' judgment, and ordering instead that that judgment be Page 361 U. S. 463 satisfied only out of the proceeds collected by Benedict on its judgment and paid into the registry of the court. [Footnote 3]The union and the trustees prosecuted separate appeals to the Court of Appeals for the Sixth Circuit. The union alleged that the District Court erred in holding that the strikes and stoppages violated the collective bargaining agreement, contending that, properly construed, the agreement did not forbid the strikes and stoppages; in the alternative, the union urged that the damages awarded were excessive. The trustees alleged as error primarily the refusal of the trial court to allow them immediate and unconditional execution, and interest, on their judgment against Benedict.The Court of Appeals affirmed the District Court except as to the amount of damages awarded to Benedict Page 361 U. S. 464 on its cross-claim, which the court adjudged was excessive. The court held that, under the evidence, Benedict's damages would not equal the amount of the trustees' judgment of $76,504.26. The case was remanded for a redetermination of Benedict's damages, with instructions that"[t]he judgment in favor of the Trustees will then be amended by the district court to allow execution and interest on that part of the said judgment which is in excess of the set-off in favor of Benedict as so redetermined."259 F.2d 346, 355. This left unaffected so much of the District Court's order as predicated the trustees' recovery, to the extent of the amount of Benedict's judgment as finally determined, upon Benedict's recovery of that judgment. The trustees and the union filed separate petitions for certiorari. We granted the trustee's petition, No. 18, and also the union's petition, No. 19, except that we limited the latter grant to the question whether the strikes and stoppages complained of by Benedict violated the collective bargaining agreement. 359 U. S. 905.In No. 19, the Court is equally divided. The judgment of the Court of Appeals, so far as it sustains the holding of the District Court that the union violated the collective bargaining agreement, is therefore affirmed.We turn to the question presented in No. 18, whether the lower courts were correct in holding in effect that Benedict might assert the union's breaches as a defense to the trustees' suit, for to the extent Benedict (the promisor) does not collect from the union (the promisee) the union's liability is set off against Benedict's liability to the third-party beneficiary. The answer to that question requires, we think, our consideration of the nature of the interests of the union, the company, and the trustees in the fund under the collective bargaining agreement.The provisions of the collective bargaining agreement creating the fund include the express provision that "this Page 361 U. S. 465 Fund is an irrevocable trust created pursuant to Section 302(c) of the Labor-Management Relations Act, 1947.'" Another provision specifies that the purposes of the fund shall be all purposes "provided for or permitted in Section 302(c)." [Footnote 4] In this way, the agreement plainly declares what the statute requires, namely, that the fund shall be used "for the sole and exclusive benefit" of the employees, their families and dependents. Thus, the fund is in no way an asset or property of the union.Benedict does not, however, base its claim of setoff on any contention that the royalty was owing to the union and might because of this be applied to the payment of its damages. Benedict's position is that, in an amount equal to the amount of the damages sustained from the union's breaches, no fund property came into existence under the terms of the collective bargaining agreement. This depends upon whether the agreement is to be construed as making performance by the union of its promises a condition precedent to Benedict's promise to pay royalty to the trustees. Benedict argues that the contracting parties expressed this meaning in an article at the close of the agreement -- "This Agreement is an integrated instrument, and its respective provisions are interdependent" -- and in the provision in another article that the no-strike clauses are "part of the consideration of this contract." However, the specific provisions of the article creating the fund provide: (1) "During the life of this [collective bargaining] Agreement, there shall be paid into such Fund by each operator signatory . . . [a royalty] on each ton of coal produced for use or for sale." (2) The operator is required to make payment "on the 10th day of each . . . calendar month covering the production of all coal for use or sale during the preceding month." (3) "This obligation of each Operator signatory Page 361 U. S. 466 hereto, which is several and not joint, to so pay such sums shall be a direct and continuing obligation of said Operator during the life of this Agreement. . . ." (4) "Title to all the moneys paid into and or due and owing said Fund shall be vested in and remain exclusively in the Trustees of the Fund. . . ." [Footnote 5] (Emphasis added.) These provisions, rather than the stipulations of general application, are controlling. Their clear import is that the parties meant that the duty to pay royalty should arise on the production of coal independent of the union's performance. Indeed, Benedict's conduct was not consistent with the interpretation which it is now urging. Benedict continued despite the breaches to perform all of its several promises under the contract, including the promise to pay royalty, paying over $100,000 on coal produced during the period in dispute and withholding only the portion in suit.But our conclusion that the union's performance of its promises is not a condition precedent to Benedict's duty to pay royalty does not fully answer the question we are to decide. For it may reasonably be argued that the damages sustained by Benedict may nevertheless affect the amount of the trustees' recovery. Professor Corbin, while acknowledging that "No case of the sort has been discovered," [Footnote 6] states:"It may perhaps be regarded as just to make the right of the beneficiary not only subject to the conditions precedent, but also subject (as in the case of an assignee) to counterclaims against the promisee -- at least if they arise out of a breach by the promisee of Page 361 U. S. 467 his duties created by the very same contract on which the beneficiary sues. [Footnote 7]"Using terms like "counterclaim" or "setoff" in a third-party beneficiary context may be confusing. In a two-party contract situation, when a promisor's duty to perform is absolute, the promisee's breaches will not excuse performance of that duty; the promisor has an independent claim against the promisee in damages. Formerly, the promisor was required to bring a separate action to recover his damages. Under modern practice, when the promises are to pay money, or are reducible to a money amount, the promisor, when sued by the promisee, offsets the damages which he has sustained against the amount he owes, and usually obtains a judgment for any excess. [Footnote 8]However, a third-party beneficiary has made no promises, and therefore has breached no duty to the promisor. Accordingly, to hold, as the lower courts in this case did, that a promisor may "set off" the damages caused by the promisee's breach is actually to read the contract, which is the measure of the third party's rights, as so providing. In other words, although the promisor's duty to perform has become fixed by the occurrence of applicable conditions precedent, the parties may be taken to have agreed that the extent of the promisor's duty to the third party will be affected by the promisee's breach of contract. When it is said that "it may be just" to make the third party subject to the counterclaim, what must be meant is that a court should infer an intention of the promisor and promisee that the third party's rights be so limited.This may be a desirable rule of construction to apply to third-party beneficiary contract where the promisor's interest in or connection with the third party, in Page 361 U. S. 468 contrast with the promisee's, begins with the promise and ends with its performance. Of course, in entering into such a contract, the promisor may be held to have given up some defense against the third party's claim to performance of the promise -- for example, the right to defeat that claim by rescinding the contract at any time he and the promisee agree. Nevertheless it may be fair to assume that, had the parties anticipated the possibility of a breach by the promisee, they would have provided that the promisor might protect himself by such means as would be available against the promisee under a two-party contract. [Footnote 9] This suggestion has not been crystallized into a rule of construction. Our problem is whether we should infer such an intention in this contract because there may be reasons making it appropriate to do so in the generality of third-party beneficiary contracts.This collective bargaining agreement, however, is not a typical third-party beneficiary contract. The promisor's interest in the third party here goes far beyond the mere performance of its promise to that third party, i.e., beyond the payment of royalty. It is a commonplace of modern industrial relations for employers to provide security for employees and their families to enable them to meet problems arising from unemployment, illness, old age or death. While employers in may other industries assume this burden directly, this welfare fund was jointly created by the coal industry and the union for that purpose. Not only has Benedict entered into a long-term relationship with the union in this regard, but, in compliance with § 302(c)(5)(B), it has assumed equal responsibility with the union for the management of the fund. In a very real sense, Benedict's interest in the soundness of the fund and its management is in no way Page 361 U. S. 469 less than that of the promisee union. This, of itself, cautions against reliance upon language which does not explicitly provide that the parties contracted to protect Benedict by allowing the company to set off its damages against its royalty obligation.Moreover, unlike the usual third-party beneficiary contract, this is an industrywide agreement involving many promisors. If Benedict and other coal operators having damage claims against the union for its breaches may curtail royalty payments, the burden will fall in the first instance upon the employees and their families across the country. Ultimately this might result in pressures upon the other coal operators to increase their royalty payments to maintain the planned schedule of benefits. The application of the suggested rule of construction to this contract would require us to assume that the other coal operators who are parties to the agreement were willing to risk the threat of diminution of the fund in order to protect those of their number who might have become involved in local labor difficulties.Furthermore, Benedict promised in the collective bargaining agreement to pay a specified scale of wages to the employees. It would not be contended that Benedict might recoup its damages by decreasing these wages. This could be rationalized by saying that the covenant to pay wages is included in separate contracts of hire entered into with each employee. The royalty payments are really another form of compensation to the employees, [Footnote 10] and, as such, the obligation to pay royalty might be thought to be incorporated into the individual employment contracts. This is not to say that the same treatment should necessarily be accorded to royalty payments as is accorded to wages, but the similarity militates against the inference Page 361 U. S. 470 that the parties intended that the trustees' claim be subject to offset.Finally a consideration which is not present in the case of other third-party beneficiary contracts is the impact of the national labor policy. Section 301(b) of the Taft-Hartley Act, provides that"[a]ny money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets."At the least, this evidences a congressional intention that the union as an entity, like a corporation, should, in the absence of agreement, be the sole source of recovery for injury inflicted by it. [Footnote 11] Although this policy was prompted by a solicitude for the union members, because they might have little opportunity to prevent the union from committing actionable wrongs, [Footnote 12] it seems to us to apply with even greater force to protecting the interests of beneficiaries of the welfare fund, many of whom may be retired, or may be dependents, and therefore without any direct voice in the conduct of union affairs. Thus, the national labor policy becomes an important consideration in determining whether the same inferences which might be drawn as to other third-party agreements should be drawn here.Section 301 authorizes federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements. Textile Workers Union v. Lincoln Mills, 353 U. S. 448. In the discharge of this function, having appropriate regard for the several considerations we have discussed, including the national labor policy, we hold that the parties to a collective bargaining Page 361 U. S. 471 agreement must express their meaning in unequivocal words before they can be said to have agreed that the union's breaches of its promises should give rise to a defense against the duty assumed by an employer to contribute to a welfare fund meeting the requirements of § 302(c)(5). We are unable to find such words in the general provisions already mentioned -- "This Agreement is an integrated instrument and its respective provisions are interdependent," and "The contracting parties agree that [the no-strike clauses are] . . . part of the consideration of this contract" -- or elsewhere in the agreement. The judgment of the Court of Appeals is therefore modified to provide that the District Court shall amend the judgment in favor of the trustees to allow immediate and unconditional execution, and interest, on the full amount of the trustees' judgment for $76,504.26 against Benedict.It is so ordered

U.S. Supreme CourtLewis v. Benedict Coal Corp., 361 U.S. 459 (1960)Lewis v. Benedict Coal Corp.No. 18Argued October 21, 1959Decided February 23, 1960*361 U.S. 459SyllabusRespondent is a party to a collective bargaining agreement between coal operators and the United Mine Workers providing for a union welfare fund meeting the requirements of § 302(c)(5) of the Taft-Hartley Act and requiring each coal operator to pay into a trust fund "for the sole and exclusive benefit" of the employees, their families, and dependents a stipulated royalty on each ton of coal produced. Respondent withheld royalties in an amount claimed to equal damages which it had sustained as a result of strikes alleged to be in violation of the same agreement, and the trustees sued to recover such royalties. Respondent defended on the ground that performance of its duty to pay the royalties to the trustees, as third-party beneficiaries of the agreement, was excused when the union violated the agreement, and it cross-claimed against the union for damages resulting from the strikes. The District Court awarded respondent a judgment on its claim against the union and awarded the trustees a judgment for the unpaid royalties, but provided that the trustees' judgment should be paid only out of the proceeds of respondent's judgment. The Court of Appeals affirmed except as to the amount of the damages awarded respondent.Held:1. So far as it sustains the holding of the District Court that the union violated the collective bargaining agreement, the judgment of the Court of Appeals is affirmed by an equally divided Court. P. 361 U. S. 464.2. The judgment of the Court of Appeals is modified to provide that the District Court shall amend the judgment in favor of the trustees to allow immediate and unconditional execution, and interest, on the full amount of the trustees' judgment against respondent. Pp. 361 U. S. 464-471. Page 361 U. S. 460(a) The collective bargaining agreement here involved is not to be construed as making performance by the union of its promises a condition precedent to respondent's promise to pay royalties to the trustees, notwithstanding a provision to the effect that the agreement "is an integrated instrument and its provisions are interdependent." Pp. 361 U. S. 464-466.(b) Regardless of the inferences which may be drawn from other third-party beneficiary contracts, the parties to a collective bargaining agreement must express their meaning in unequivocal words before they can be said to have agreed that the union's breaches of its promises should give rise to a defense against the duty assumed by an employer to contribute to a welfare fund meeting the requirements of § 302(c)(5), and the agreement here involved contains no such words. Pp. 361 U. S. 466-471.259 F.2d 346, judgment modified.

1989_88-2035

JUSTICE MARSHALL delivered the opinion of the Court.In this case, we must decide whether exclusivity provisions in state workers' compensation laws bar migrant workers from availing themselves of a private right of action under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 96 Stat. 2583, as amended, 29 U.S.C. § 1801 et seq. (1982 ed. and Supp. V). We hold that they do not.IRespondents, migrant farmworkers employed by petitioner Adams Fruit Company, Inc., suffered severe injuries in an automobile accident while they traveled to work in Adams Fruit's van. As a result of their injuries, respondents received benefits pursuant to Florida workers' compensation law. They thereafter filed suit against Adams Fruit in Federal District Court, alleging that their injuries were attributable in part to Adams Fruit's intentional violations of AWPA's motor vehicle safety provisions, 29 U.S.C. § 1841(b)(1)(A) (1982 ed.), and accompanying regulations, 29 Page 494 U. S. 641 CFR § 500.105 (1989). Respondents maintained that the van in which they were transported was inadequate to support the vehicle's weight; that the total number of persons in the van exceeded its seating capacity; that a seat was not provided for each passenger; that the van was overloaded; that the seats in the van were not equipped with seat belts; and that Adams Fruit committed these violations intentionally. Respondents sought actual and statutory damages pursuant to AWPA's private right of action provision, 29 U.S.C. § 1854 (1982 ed.). [Footnote 1]Adams Fruit moved for summary judgment on the ground that Florida law provides that its workers' compensation remedy "shall be exclusive and in place of all other liability of such employer to . . . the employee," Fla.Stat. § 440.11 (1989), and that respondents' receipt of workers' compensation benefits therefore precluded them from recovering damages under AWPA for the same injuries. In support of its position, Adams Fruit maintained that Congress did not, in creating a private right of action for migrant workers, intend to preempt or interfere with the operation of state workers' compensation schemes, including their exclusivity provisions. The District Court granted petitioner's motion, relying on the Fourth Circuit's decision in Roman v. Sunny Slope Page 494 U. S. 642 Farms, Inc., 817 F.2d 1116, 1118 (1987). The Court of Appeals for the Eleventh Circuit reversed, holding that an exclusivity provision in a state workers' compensation law does not bar a private suit under AWPA. 867 F.2d 1305, 1311 (1989). We granted certiorari to resolve this split in authority, 493 U.S. 808 (1989), and now affirm.IISection 1854 of AWPA establishes a private right of action for aggrieved migrant workers against agricultural employers, and provides for actual and statutory damages in cases of intentional violations. Resolution of petitioner's claim that AWPA's private right of action is withdrawn where state law establishes workers' compensation as an exclusive remedy depends on two doctrinally related issues. First we must decide whether, as a matter of statutory construction, AWPA permits migrant workers to pursue federal remedies under such circumstances. Second, if AWPA permits simultaneous recovery under federal and state law, we must determine whether, under preemption principles, AWPA precludes giving effect to state exclusivity provisions that purport to withdraw federal remedies. In either case, the issue turns on the language of the statute and, where the language is not dispositive, on the intent of Congress as revealed in the history and purposes of the statutory scheme. See, e.g., Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980) ("[T]he starting point for interpreting a statute is the language of the statute itself"); Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 463 U. S. 95 (1983) ("[I]n deciding whether a federal law preempts a state statute, our task is to ascertain Congress' intent in enacting the federal statute at issue"). As a general rule of statutory construction, where the terms of a statute are unambiguous, judicial inquiry is complete. See, e.g., Rubin v. United States, 449 U. S. 424, 449 U. S. 430 (1981). Preemption "is compelled whether Congress' command is explicitly stated in the statute's Page 494 U. S. 643 language or implicitly contained in its structure and purpose." Jones v. Rath Packing Co., 430 U. S. 519, 430 U. S. 525 (1977).AThe enforcement provisions of AWPA that establish a private right of action for "[a]ny person aggrieved by a violation" of the Act's provisions or accompanying regulations, 29 U.S.C. § 1854(a) (1982 ed.), in no way intimate that the availability of that right is affected by state workers' compensation law. Adams Fruit nevertheless contends that the language of AWPA's enforcement provisions is not dispositive, because other provisions of the statute reflect congressional intent to withdraw private rights of action where state workers' compensation is available.Adams Fruit's argument focuses on § 1841, which concerns motor vehicle safety. Subsections (a) and (b) of § 1841 establish minimum standards, licensing, and insurance requirements to help secure safe transportation for migrant and seasonal agricultural workers. As part of these protections, subsection (b)(1)(C) requires each agricultural employer to"have an insurance policy or a liability bond . . . which insures the agricultural employer . . . against liability for damage to persons or property arising from the ownership, operation, or the causing to be operated, of any vehicle used to transport any migrant or seasonal agricultural worker."Subsection (c) waives this insurance requirement where an agricultural employer "is the employer of any migrant or seasonal agricultural worker for purposes of a State workers' compensation law." In such cases, "[n]o insurance policy or liability bond [is] required of the employer" if the migrant workers are transported solely under circumstances for which there is coverage under such state law.Adams Fruit maintains that Congress' decision to permit agricultural employers to satisfy AWPA's insurance policy and liability bond requirements through their state workers' compensation insurance reflects an intent to preclude AWPA Page 494 U. S. 644 liability for bodily injury where employers have obtained coverage under state law. In Adams Fruit's view, it would be incongruous for Congress explicitly to waive insurance coverage requirements where workers' compensation is available and at the same time to allow migrant workers to seek cumulative remedies under workers' compensation laws and AWPA. So construed, Adams Fruit argues, the statute creates a trap for the unwary agricultural employer, who reasonably could have expected the waiver of insurance requirements to reflect a waiver of liability as well.Adams Fruit's argument is unpersuasive, because it rests on the extraordinary and unjustified proposition that congressional intent regarding private enforcement of AWPA is best discerned through a meaning alleged to be implicit in AWPA's motor vehicle safety provisions, rather than the explicit language of AWPA's enforcement provisions. AWPA's motor vehicle safety provisions appear in Title IV of the Act, entitled "Further Protections for Migrant and Seasonal Agricultural Workers," whereas AWPA's provision for a private right of action appears in Title V, part A, labeled "Enforcement Provisions." Moreover, Congress' sole express limitation on the availability of relief is found in AWPA's enforcement provisions, see § 1854(c)(2) (authorizing a court, "[i]n determining the amount of damages to be awarded . . to consider whether an attempt was made to resolve the issues in dispute before the resort to litigation"). Had Congress intended to limit further the availability of AWPA relief based on the adequacy of state workers' compensation remedies, it would have made that purpose clear in the enforcement provisions of AWPA. [Footnote 2] Petitioner's argument, Page 494 U. S. 645 which relies on provisions far removed from Congress' express authorization of a federal remedy, is inconsistent with basic principles of statutory construction that require giving effect to the meaning and placement of the words chosen by Congress. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 489 U. S. 813 (1989).Adams Fruit's argument is also flawed in that the insurance waiver provision is not inconsistent with the availability of overlapping remedies under workers' compensation laws and AWPA. It is true that, in accordance with § 1841(c)(1)'s waiver of insurance requirements, an agricultural employer will not be in violation of AWPA if it fails to obtain insurance sufficient to cover its potential liability as long as the employer maintains insurance under state workers' compensation law. But the possibility of underinsurance is also present where an employer is not enrolled in a workers' compensation plan. AWPA limits the insurance that agricultural employers must carry, 29 U.S.C. § 1841(b)(3) (1982 ed.); if a claim exceeds the required coverage, an employer is nonetheless liable for the whole claim. § 1854(c)(1) (authorizing damages "up to and including an amount equal to the amount of actual damages"); see also 128 Cong.Rec. 32463 (1982) ("[F]ull actual damages [are to] be awarded in every case"). In this respect, AWPA does not differ from other mandatory insurance regimes that require a minimum level of coverage without establishing an absolute limit on liability. Thus, Congress' decisions to allow workers' compensation insurance to satisfy § 1841(b)'s minimum coverage requirements on the one hand, and to afford migrant workers federal and state remedies that may exceed such coverage on the other, are not incompatible; indeed, the decisions are consistent with AWPA's treatment of agricultural employers who are not exempted from § 1841(b)'s insurance and bond requirements. [Footnote 3] Page 494 U. S. 646We likewise reject petitioner's contention that, where Congress authorizes a private right of action to vindicate a federal right, we should assume that Congress has conditioned that right on the unavailability of a state remedy. Indeed, we have stated that "it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law." NLRB v. Natural Gas Utility District of Hawkins County, 402 U. S. 600, 402 U. S. 603 (1971) (internal quotation marks and citation omitted). Congress may choose to establish state remedies as adequate alternatives to federal relief, but federal rights should be regarded as supplementing state-created rights unless otherwise indicated. See, e.g., Gomez v. Toledo, 446 U. S. 635, 446 U. S. 639 (1980) (construing 42 U.S.C. § 1983); Tennessee C., I. & R. Co. v. Muscoda Local No. 123, 321 U. S. 590, 321 U. S. 597 (1944) (construing Fair Labor Standards Act).Cases in which this Court has harmonized federal statutes that provide overlapping federal remedies, see, e.g., United States v. Demko, 385 U. S. 149 (1966), are not to the contrary. In Demko, this Court held that the existence of a comprehensive federal scheme for compensating injured prisoners precluded supplemental recovery under the Federal Tort Claims Act. A finding that a specific federal remedy trumps a more general federal remedy may be appropriate in certain circumstances, but that conclusion is a far cry from a presumption that a general state remedy invariably trumps a specific federal one.Accordingly, the plain meaning of the statute's language indicates that AWPA's private right of action is unaffected Page 494 U. S. 647 by the availability of remedies under state workers' compensation law.BAdams Fruit also contends that Congress did not intend to preempt States from establishing their workers' compensation schemes as the exclusive mechanism to redress injuries to migrant workers. In support of this position, Adams Fruit points to 29 U.S.C. § 1871 (1982 ed.), which provides that the statute"is intended to supplement State law, and compliance with this chapter shall not excuse any person from compliance with appropriate State law and regulation."On the basis of this provision, Adams Fruit argues that this Court must give effect to the exclusivity provision in Florida's statute, which it construes as withdrawing AWPA's private right of action.We disagree that Florida's exclusivity provision is intended to preclude federal remedies. Neither the Florida Legislature nor the Florida courts have declared such a purpose; indeed, to the limited extent that the Florida Supreme Court has expressed a view regarding the extraterritorial scope of the exclusivity provision, it has stated the opposite. See Byrd v. Richardson-Greenshields Securities, Inc., 552 So. 2d 1099, 1102 (1989) (refusing to frustrate federal and state sexual harassment policies through "blind adherence to the exclusivity rule of the workers' compensation statute alone" and expressing its commitment "not [to] apply the exclusivity rule in a manner that effectively abrogates the policies of other law"). We therefore decline petitioner's invitation to construe Florida law so as to create a conflict between federal and state legislation. [Footnote 4] Page 494 U. S. 648 Even if Florida's provision were directed at federal law, § 1871 does not mandate displacement of the federal remedy. Although that section permits States to supplement AWPA's remedial scheme, it cannot be viewed as authorizing States to replace or supersede its remedies. Nor are we persuaded by petitioner's claim that Congress intended to preserve the particular balance state workers' compensation statutes generally strike between assurance of compensation, on the one hand, and limited and exclusive liability for the employer, on the other. Whatever the merits of this characterization of the purposes of workers' compensation, the point is off-target. That congressional authorization of a federal remedy may affect the balance struck in state regulatory schemes does not suggest that Congress intended its remedial provisions to be effective only in certain States. Federal legislation applies in all States, and in cases of conflict between federal law and the policies purportedly underlying some state regulatory schemes, the scope of federal law is not curtailed.More generally, we refuse to adopt Adams Fruit's "reverse" preemption principle that would authorize States to withdraw federal remedies by establishing state remedies as exclusive. Such provisions cannot be viewed as permissible interstitial regulation in the service of, or at least neutral with respect to, the purposes of the federal scheme. Cf. Mackey v. Lanier Collections Agency & Service, Inc., 486 U. S. 825, 486 U. S. 834-838 (1988) (where federal law does not establish an enforcement mechanism for collecting ERISA judgments, state mechanisms not preempted); Robertson v. Wegmann, 436 U. S. 584, 436 U. S. 594 (1978) (application of state survivorship rule to 42 U.S.C. § 1983 is not preempted because rule does not impair federally secured right). Rather they directly conflict with the purposes of the federal statute. Page 494 U. S. 649Accordingly, we find that AWPA preempts state law to the limited extent that it does not permit States to supplant, rather than to supplement, AWPA's remedial scheme.CAdams Fruit argues that, in the absence of any explicit congressional statement regarding the preemptive scope of AWPA, this Court should defer to the Department of Labor's position that"[w]here a State workers' compensation law is applicable and coverage is provided for a migrant or seasonal agricultural worker by the employer, the workers' compensation benefits are the exclusive remedy for loss under this Act in the case of bodily injury or death."29 CFR § 500.122(b) (1989).As an initial matter, we reject petitioner's view that AWPA's failure to speak directly to the preemption of state exclusivity provisions creates a statutory "gap" within the meaning of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 843 (1984), that Congress intended the Department of Labor to fill. A "gap" is not created in a statutory scheme merely because a statute does not restate the truism that States may not preempt federal law.Moreover, even if AWPA's language establishing a private right of action is ambiguous, we need not defer to the Secretary of Labor's view of the scope of § 1854, because Congress has expressly established the Judiciary, and not the Department of Labor, as the adjudicator of private rights of action arising under the statute. A precondition to deference under Chevron is a congressional delegation of administrative authority. Bowen v. Georgetown University Hospital, 488 U. S. 204, 488 U. S. 208 (1988). See also NLRB v. Food and Commercial Workers, 484 U. S. 112, 484 U. S. 123 (1987) (Chevron review of agency interpretations of statutes applies only to regulations "promulgated pursuant to congressional authority"); Crandon v. United States, 494 U. S. 152, 494 U. S. 177 (1990) (SCALIA, J., concurring in judgment) (rejecting Chevron deference Page 494 U. S. 650 where the statute "is not administered by any agency, but by the courts"); cf. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 464 U. S. 97 (1983) (refusing to sanction "unauthorized assumption by an agency of major policy decisions'" (quoting American Ship Building Co. v. NLRB, 380 U. S. 300, 380 U. S. No such delegation regarding AWPA's enforcement provisions is evident in the statute. Rather, Congress established an enforcement scheme independent of the Executive and provided aggrieved farmworkers with direct recourse to federal court where their rights under the statute are violated. Under such circumstances, it would be inappropriate to consult executive interpretations of § 1854 to resolve ambiguities surrounding the scope of AWPA's judicially enforceable remedy.Congress clearly envisioned, indeed expressly mandated, a role for the Department of Labor in administering the statute by requiring the Secretary to promulgate standards implementing AWPA's motor vehicle provisions. § 1841(d). This delegation, however, does not empower the Secretary to regulate the scope of the judicial power vested by the statute. Although agency determinations within the scope of delegated authority are entitled to deference, it is fundamental "that an agency may not bootstrap itself into an area in which it has no jurisdiction." Federal Maritime Comm'n v. Seatrain Lines, Inc., 411 U. S. 726, 411 U. S. 745 (1973); SEC v. Sloan, 436 U. S. 103, 436 U. S. 119 (1978) (same); cf. Adamo Wrecking Co. v. United States, 434 U. S. 275, 434 U. S. 288, n. 5 (1978) (rejecting "Administrator's unexplained exercise of supposed authority"). Accordingly, the Secretary's conclusion that workers' compensation benefits, where available, provide the exclusive remedy for violations of AWPA is not entitled to Chevron deference.IIIOur review of the language and structure of AWPA leads us to conclude that AWPA does not establish workers' compensation benefits as an exclusive remedy under § 1854, even Page 494 U. S. 651 where state workers' compensation schemes purport to establish their benefits as exclusive of all other relief. [Footnote 5] Accordingly, the decision of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtAdams Fruit Co., Inc. v. Barrett, 494 U.S. 638 (1990)Adams Fruit Co., Inc. v. BarrettNo. 88-2035Argued January 17, 1990Decided March 21, 1990494 U.S. 638SyllabusRespondents, migrant farmworkers employed by petitioner, received benefits under Florida workers' compensation law for injuries they suffered in an automobile accident while traveling to work in petitioner's van. They subsequently filed suit against petitioner in Federal District Court, alleging that their injuries were attributable in part to petitioner's intentional violations of the motor vehicle safety provisions of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 29 U.S.C. § 1801 et seq., and accompanying regulations. They sought actual and statutory damages for such violations pursuant to AWPA's private right of action provision, § 1854. The court granted petitioner summary judgment on the ground that the state workers' compensation law provides that its remedy is exclusive, and that respondents' receipt of benefits under that law therefore precluded them from recovering damages under AWPA for the same injuries. The Court of Appeals reversed, holding that such an exclusivity provision does not bar a private AWPA suit.Held: Exclusivity provisions in state workers' compensation laws do not bar migrant workers from availing themselves of a private right of action under § 1854. Pp. 494 U. S. 642-651.(a) The explicit language of AWPA's enforcement provisions -- which establishes a private right of action for "[a]ny person aggrieved by a violation," § 1854(a) -- indicates that that right is unaffected by the availability of remedies under state workers' compensation law. A congressional intent to the contrary is not established by AWPA's motor vehicle safety provisions, which permit employers to satisfy the statute's insurance and liability bond requirements through their state workers' compensation insurance. The safety provisions appear in a Title far removed from the enforcement provisions, and the latter provisions contain Congress' sole express limitation on the availability of relief, which applies where no attempt was made to resolve the disputed issues before litigation. Had Congress intended to limit further the availability of AWPA relief based on the adequacy of state workers' compensation remedies, it would have made that purpose clear in AWPA's enforcement provisions. Moreover, the insurance waiver provision is not inconsistent with the availability of overlapping remedies under workers' compensation Page 494 U. S. 639 laws and AWPA, since the agricultural employer, whether or not it has enrolled in a workers' compensation plan, will be liable under AWPA's enforcement provisions if the employee's actual damages exceed the required minimum insurance coverage. Although Congress may choose to establish state remedies as adequate alternatives to federal relief, it cannot be assumed that private federal rights of action are conditioned on the unavailability of state remedies absent some indication to that effect. Cases in which this Court has harmonized federal statutes that provide overlapping federal remedies are not to the contrary. Pp. 494 U. S. 643-647.(b) AWPA preempts state law to the limited extent that it does not permit States to supplant, rather than to supplement, the statute's remedial scheme. Section 1871 -- which provides that AWPA"is intended to supplement State law, and compliance with [the statute] shall not excuse any person from compliance with appropriate State law and regulation"-- does not require this Court to give effect to the Florida exclusivity provision, even if that provision were intended to withdraw AWPA's private right of action. Although § 1871 permits States to supplement the statute's remedial scheme, it cannot be viewed as authorizing them to replace or supersede AWPA remedies. Petitioner's claim that Congress intended to preserve the particular balance state workers' compensation laws generally strike between assurance of compensation and limited and exclusive employer liability is off target, since the fact that AWPA may affect that balance does not suggest that Congress intended AWPA's remedial provisions to be effective only in certain States. Federal law applies in all States, and the scope of federal law is not curtailed where it conflicts with the policies purportedly underlying some state regulatory schemes. State exclusivity provisions that attempt to withdraw federal remedies directly conflict with the federal scheme's purposes, and cannot be viewed as permissible interstitial regulation. Pp. 494 U. S. 647-649.(c) Even if AWPA's language establishing a private right of action is ambiguous as to the statute's preemptive scope, this Court need not defer to the Department of Labor's position that state workers' compensation benefits, where applicable, are the exclusive remedy for loss under the statute. Congress expressly established the Judiciary, and not the Department, as the adjudicator of AWPA private rights of action, and the Department's statutory authorization to promulgate motor vehicle safety standards cannot bootstrap that agency into an area in which it has no jurisdiction. Pp. 494 U. S. 649-650.867 F.2d 1305, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court. Page 494 U. S. 640

1982_82-492

JUSTICE POWELL delivered the opinion of the Court.The issue presented is whether the Eighth Amendment proscribes a life sentence without possibility of parole for a seventh nonviolent felony.IBy 1975, the State of South Dakota had convicted respondent Jerry Helm of six nonviolent felonies. In 1964, 1966, and 1969, Helm was convicted of third-degree burglary. [Footnote 1] In 1972, Page 463 U. S. 280 he was convicted of obtaining money under false pretenses. [Footnote 2] In 1973, he was convicted of grand larceny. [Footnote 3] And in 1975, he was convicted of third-offense driving while intoxicated. [Footnote 4] The record contains no details about the circumstances of any of these offenses, except that they were all nonviolent, none was a crime against a person, and alcohol was a contributing factor in each case. Page 463 U. S. 281In 1979, Helm was charged with uttering a "no account" check for $100. [Footnote 5] The only details we have of the crime are those given by Helm to the state trial court:"'I was working in Sioux Falls, and got my check that day, was drinking, and I ended up here in Rapid City with more money than I had when I started. I knew I'd done something, I didn't know exactly what. If I would have known this, I would have picked the check up. I was drinking, and didn't remember, stopped several places.'"State v. Helm, 287 N.W.2d 497, 501 (S.D.1980) (Henderson, J., dissenting) (quoting Helm). After offering this explanation, Helm pleaded guilty.Ordinarily, the maximum punishment for uttering a "no account" check would have been five years' imprisonment in the state penitentiary and a $5,000 fine. See S.D.Comp.Laws Ann. § 22-6-1(6) (1967 ed., Supp.1978) (now codified at S.D.Codified Laws § 22-6-1(7) (Supp.1982)). As a result of his criminal record, however, Helm was subject to South Dakota's recidivist statute:"When a defendant has been convicted of at least three prior convictions [sic] in addition to the principal felony, the sentence for the principal felony shall be enhanced to the sentence for a Class 1 felony."S.D.Codified Laws § 22-7-8 (1979) (amended 1981). The maximum penalty for a "Class 1 felony" was life imprisonment in the state penitentiary and a $25,000 fine. [Footnote 6] S.D. Page 463 U. S. 282 Comp.Laws Ann. § 22-6-1(2) (1967 ed., Supp.1978) (now codified at S.D.Codified Laws § 22-6-1(3) (Supp.1982)). Moreover, South Dakota law explicitly provides that parole is unavailable: "A person sentenced to life imprisonment is not eligible for parole by the board of pardons and paroles." S.D.Codified Laws § 24-15-4 (1979). The Governor [Footnote 7] is authorized to pardon prisoners, or to commute their sentences, S.D. Const., Art. IV, § 3, but no other relief from sentence is available even to a rehabilitated prisoner.Immediately after accepting Helm's guilty plea, the South Dakota Circuit Court sentenced Helm to life imprisonment under § 22-7-8. The court explained:"'I think you certainly earned this sentence, and certainly proven that you're an habitual criminal, and the record Page 463 U. S. 283 would indicate that you're beyond rehabilitation and that the only prudent thing to do is to lock you up for the rest of your natural life, so you won't have further victims of your crimes, just be coming back before Courts. You'll have plenty of time to think this one over.'"State v. Helm, supra, at 500 (Henderson, J., dissenting) (quoting South Dakota Circuit Court, Seventh Judicial Circuit, Pennington County (Parker, J.)). The South Dakota Supreme Court, in a 3-2 decision, affirmed the sentence despite Helm's argument that it violated the Eighth Amendment. State v. Helm, supra.After Helm had served two years in the state penitentiary, he requested the Governor to commute his sentence to a fixed term of years. Such a commutation would have had the effect of making Helm eligible to be considered for parole when he had served three-fourths of his new sentence. See S.D.Codified Laws § 24-15-5(3) (1979). The Governor denied Helm's request in May, 1981. App. 26.In November, 1981, Helm sought habeas relief in the United States District Court for the District of South Dakota. Helm argued, among other things, that his sentence constituted cruel and unusual punishment under the Eighth and Fourteenth Amendments. Although the District Court recognized that the sentence was harsh, it concluded that this Court's recent decision in Rummel v. Estelle, 445 U. S. 263 (1980), was dispositive. It therefore denied the writ.The United States Court of Appeals for the Eighth Circuit reversed. 684 F.2d 582 (1982). The Court of Appeals noted that Rummel v. Estelle was distinguishable. Helm's sentence of life without parole was qualitatively different from Rummel's life sentence with the prospect of parole, because South Dakota has rejected rehabilitation as a goal of Page 463 U. S. 284 the criminal justice system. The Court of Appeals examined the nature of Helm's offenses, the nature of his sentence, and the sentence he could have received in other States for the same offense. It concluded, on the basis of this examination, that Helm's sentence was "grossly disproportionate to the nature of the offense." 684 F.2d at 587. It therefore directed the District Court to issue the writ unless the State resentenced Helm. Ibid. .We granted certiorari to consider the Eighth Amendment question presented by this case. 459 U.S. 986 (1982). We now affirm.IIThe Eighth Amendment declares: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The final clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.AThe principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common law jurisprudence. In 1215, three chapters of Magna Carta were devoted to the rule that "amercements" [Footnote 8] may not be excessive. [Footnote 9] And the principle was repeated and extended in the First Statute of Westminster, 3 Edw. I, ch. 6 Page 463 U. S. 285 (1275). These were not hollow guarantees, for the royal courts relied on them to invalidate disproportionate punishments. See, e.g., Le Gras v. Bailiff of Bishop of Winchester, Y.B.Mich. 10 Edw. II, pl. 4 (C. P. 1316), reprinted in 52 Selden Society 3 (1934). When prison sentences became the normal criminal sanctions, the common law recognized that these, too, must be proportional. See, e.g., Hodges v. Humkin, 2 Bulst. 139, 140, 80 Eng.Rep. 1015, 1016 (K.B. 1615) (Croke, J.) ("imprisonment ought always to be according to the quality of the offence").The English Bill of Rights repeated the principle of proportionality in language that was later adopted in the Eighth Amendment: "excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted." 1 Wm. & Mary, sess. 2, ch. 2 (1689). Although the precise scope of this provision is uncertain, it at least incorporated"the longstanding principle of English law that the punishment . . . should not be, by reason of its excessive length or severity, greatly disproportionate to the offense charged."R. Perry, Sources of Our Liberties 236 (1959); see 4 W. Blackstone, Commentaries *16-*19 (1769) (hereafter Blackstone); see also id. at *16-*17 (in condemning "punishments of unreasonable severity," uses "cruel" to mean severe or excessive). Indeed, barely three months after the Bill of Rights was adopted, the House of Lords declared that a"fine of thirty thousand pounds, imposed by the court of King's Bench upon the earl of Devon was excessive and exorbitant, against magna charta, the common right of the subject, and the law of the land."Earl of Devon's Case, 11 State Tr. 133, 136 (1689).When the Framers of the Eighth Amendment adopted the language of the English Bill of Rights, [Footnote 10] they also adopted the Page 463 U. S. 286 English principle of proportionality. Indeed, one of the consistent themes of the era was that Americans had all the rights of English subjects. See, e.g., 1 J.Continental Cong. 83 (W. Ford ed.1904) (Address to the People of Great Britain, Sept. 5, 1774) ("we claim all the benefits secured to the subject by the English constitution"); 1 American Archives 700 (4th series 1837) (Georgia Resolutions, Aug. 10, 1774) ("his Majesty's subjects in America . . . are entitled to the same rights, privileges, and immunities with their fellow subjects in Great Britain"). Thus our Bill of Rights was designed in part to ensure that these rights were preserved. Although the Framers may have intended the Eighth Amendment to go beyond the scope of its English counterpart, their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection -- including the right to be free from excessive punishments.BThe constitutional principle of proportionality has been recognized explicitly in this Court for almost a century. [Footnote 11] In the Page 463 U. S. 287 leading case of Weems v. United States, 217 U. S. 349 (1910), the defendant had been convicted of falsifying a public document and sentenced to 15 years of "cadena temporal," a form of imprisonment that included hard labor in chains and permanent civil disabilities. The Court noted that "it is a precept of justice that punishment for crime should be graduated and proportioned to offense," id. at 217 U. S. 367, and held that the sentence violated the Eighth Amendment. The Court endorsed the principle of proportionality as a constitutional standard, see, e.g., id. at 217 U. S. 372-373, and determined that the sentence before it was "cruel in its excess of imprisonment," id. at 217 U. S. 377, as well as in its shackles and restrictions.The Court next applied the principle to invalidate a criminal sentence in Robinson v. California, 370 U. S. 660 (1962). [Footnote 12] A 90-day sentence was found to be excessive for the crime of being "addicted to the use of narcotics." The Court explained that "imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual." Id. at 370 U. S. 667. Thus there was no question of an inherently barbaric punishment."But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold."Ibid. Page 463 U. S. 288Most recently, the Court has applied the principle of proportionality to hold capital punishment excessive in certain circumstances. Enmund v. Florida, 458 U. S. 782 (1982) (death penalty excessive for felony murder when defendant did not take life, attempt to take life, or intend that a life be taken or that lethal force be used); Coker v. Georgia, 433 U. S. 584, 433 U. S. 592 (1977) (plurality opinion) ("sentence of death is grossly disproportionate and excessive punishment for the crime of rape"); id. at 433 U. S. 601 (POWELL, J., concurring in judgment in part and dissenting in part) ("ordinarily death is disproportionate punishment for the crime of raping an adult woman"). And the Court has continued to recognize that the Eighth Amendment proscribes grossly disproportionate punishments, even when it has not been necessary to rely on the proscription. See, e.g., Hutto v. Finney, 437 U. S. 678, 437 U. S. 685 (1978); Ingraham v. Wright, 430 U. S. 651, 430 U. S. 667 (1977); Gregg v. Georgia, 428 U. S. 153, 428 U. S. 171-172 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.); cf. Hutto v. Davis, 454 U. S. 370, 454 U. S. 374, and n. 3 (1982) (per curiam) (recognizing that some prison sentences may be constitutionally disproportionate); Rummel v. Estelle, 445 U.S. at 445 U. S. 274, n. 11 (same). [Footnote 13]CThere is no basis for the State's assertion that the general principle of proportionality does not apply to felony prison sentences. [Footnote 14] The constitutional language itself suggests no Page 463 U. S. 289 exception for imprisonment. We have recognized that the Eighth Amendment imposes "parallel limitations" on bail, fines, and other punishments, Ingraham v. Wright, supra, at 430 U. S. 664, and the text is explicit that bail and fines may not be excessive. It would be anomalous indeed if the lesser punishment of a fine and the greater punishment of death were both subject to proportionality analysis, but the intermediate punishment of imprisonment were not. There is also no historical support for such an exception. The common law principle incorporated into the Eighth Amendment clearly applied to prison terms. See Hodges v. Humkin, 2 Bulst. 139, 80 Eng.Rep. 1015 (K.B. 1615). And our prior cases have recognized explicitly that prison sentences are subject to proportionality analysis. See, e.g., Weems, supra, at 217 U. S. 377; cf. Hutto v. Finney, supra, at 437 U. S. 685 ("Confinement in a prison . . . is a form of punishment subject to scrutiny under Eighth Amendment standards").When we have applied the proportionality principle in capital cases, we have drawn no distinction with cases of imprisonment. See Gregg v. Georgia, supra, at 428 U. S. 176 (opinion of Stewart, POWELL, and STEVENS, JJ.). It is true that the "penalty of death differs from all other forms of criminal punishment, not in degree but in kind." Furman v. Georgia, 408 U. S. 238, 408 U. S. 306 (1972) (Stewart, J., concurring). As a result, "our decisions [in] capital cases are of limited assistance in deciding the constitutionality of the punishment" in a noncapital case. Rummel v. Estelle, 445 U.S. at 445 U. S. 272. We agree, therefore, that,"[o]utside the context of capital punishment, successful challenges to the proportionality of particular Page 463 U. S. 290 sentences [will be] exceedingly rare. [Footnote 15]"Ibid. (emphasis added); see Hutto v. Davis, supra, at 454 U. S. 374. This does not mean, however, that proportionality analysis is entirely inapplicable in noncapital cases.In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. [Footnote 16] But no penalty is per se constitutional. As the Court noted in Robinson v. California, 370 U.S. at 370 U. S. 667, a single day in prison may be unconstitutional in some circumstances.IIIAWhen sentences are reviewed under the Eighth Amendment, courts should be guided by objective factors that our cases have recognized. [Footnote 17] First, we look to the gravity of the Page 463 U. S. 291 offense and the harshness of the penalty. In Enmund, for example, the Court examined the circumstances of the defendant's crime in great detail. 458 U.S. at 458 U. S. 797-801. In Coker, the Court considered the seriousness of the crime of rape, and compared it to other crimes, such as murder. 433 U.S. at 433 U. S. 597-598 (plurality opinion); id. at 433 U. S. 603 (POWELL, J., concurring in judgment in part and dissenting in part). In Robinson, the emphasis was placed on the nature of the "crime." 370 U.S. at 370 U. S. 666-667. And in Weems, the Court's opinion commented in two separate places on the pettiness of the offense. 217 U.S. at 217 U. S. 363 and 217 U. S. 365. Of course, a court must consider the severity of the penalty in deciding whether it is disproportionate. See, e.g., Coker, 433 U.S. at 433 U. S. 598 (plurality opinion); Weems, 217 U.S. at 217 U. S. 366-367.Second, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction. If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive. Thus, in Enmund, the Court noted that all of the other felony murderers on death row in Florida were more culpable than the petitioner there. 458 U.S. at 458 U. S. 795-796. The Weems Court identified an impressive list of more serious crimes that were subject to less serious penalties. 217 U.S. at 217 U. S. 380-381.Third, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions. Page 463 U. S. 292 In Enmund, the Court conducted an extensive review of capital punishment statutes and determined that "only about a third of American jurisdictions would ever permit a defendant [such as Enmund] to be sentenced to die." 458 U.S. at 458 U. S. 792. Even in those jurisdictions, however, the death penalty was almost never imposed under similar circumstances. Id. at 458 U. S. 794-796. The Court's review of foreign law also supported its conclusion. Id. at 458 U. S. 796-797, n. 22. The analysis in Coker was essentially the same. 433 U.S. at 433 U. S. 593-597. And in Weems, the Court relied on the fact that, under federal law, a similar crime was punishable by only two years' imprisonment and a fine. 217 U.S. at 217 U. S. 380. Cf. Trop v. Dulles, 356 U. S. 86, 356 U. S. 102-103 (1958) (plurality opinion).In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.BApplication of these factors assumes that courts are competent to judge the gravity of an offense, at least on a relative scale. In a broad sense, this assumption is justified, and courts traditionally have made these judgments -- just as legislatures must make them in the first instance. Comparisons can be made in light of the harm caused or threatened to the victim or society, and the culpability of the offender. Thus, in Enmund, the Court determined that the petitioner's conduct was not as serious as his accomplices' conduct. Indeed, there are widely shared views as to the relative seriousness of crimes. See Rossi, Waite, Bose, & Berk, The Seriousness of Crimes: Normative Structure and Individual Differences, 39 Am.Sociological Rev. 224, 237 (1974) (hereafter Rossi et al.). For example, as the criminal laws make clear, nonviolent crimes are less serious than crimes marked by violence Page 463 U. S. 293 or the threat of violence. Cf. Tr. of Oral Arg. 16 (the State recognizes that the criminal law is more protective of people than property).There are other accepted principles that courts may apply in measuring the harm caused or threatened to the victim or society. The absolute magnitude of the crime may be relevant. Stealing a million dollars is viewed as more serious than stealing a hundred dollars -- a point recognized in statutes distinguishing petty theft from grand theft. See, e.g., S.D.Codified Laws § 22-30A-17 (Supp.1982). Few would dispute that a lesser included offense should not be punished more severely than the greater offense. Thus, a court is justified in viewing assault with intent to murder as more serious than simple assault. See Roberts v. Collin, 544 F.2d 168, 169-170 (CA4 1976) (per curiam), cert. denied, 430 U.S. 973 (1977). Cf. Dembowski v. State, 251 Ind. 250, 252, 240 N.E.2d 815, 817 (1968) (armed robbery more serious than robbery); Cannon v. Gladden, 203 Ore. 629, 632, 281 P.2d 233, 235 (1955) (rape more serious than assault with intent to commit rape). It also is generally recognized that attempts are less serious than completed crimes. See, e.g., S.D.Codified Laws § 22-4-1 (1979); 4 Blackstone *15. Similarly, an accessory after the fact should not be subject to a higher penalty than the principal. See, e.g., 18 U.S.C. § 3.Turning to the culpability of the offender, there are again clear distinctions that courts may recognize and apply. In Enmund, the Court looked at the petitioner's lack of intent to kill in determining that he was less culpable than his accomplices. 458 U.S. at 458 U. S. 798. Most would agree that negligent conduct is less serious than intentional conduct. South Dakota, for example, ranks criminal acts in ascending order of seriousness as follows: negligent acts, reckless acts, knowing acts, intentional acts, and malicious acts. S.D.Codified Laws § 22-1-2(1)(f) (Supp.1982). A court, of course, is entitled to look at a defendant's motive in committing a crime. Thus, a murder may be viewed as more serious when committed Page 463 U. S. 294 pursuant to a contract. See, e.g., Mass.Gen.Laws Ann., ch. 279, § 69(a)(5) (West Supp.1982-1983); cf. 4 Blackstone *15; In re Foss, 10 Cal. 3d 910, 519 P.2d 1073 (1974).This list is by no means exhaustive. It simply illustrates that there are generally accepted criteria for comparing the severity of different crimes on a broad scale, despite the difficulties courts face in attempting to draw distinctions between similar crimes.CApplication of the factors that we identify also assumes that courts are able to compare different sentences. This assumption, too, is justified. The easiest comparison, of course, is between capital punishment and noncapital punishments, for the death penalty is different from other punishments in kind rather than degree. [Footnote 18] For sentences of imprisonment, the problem is not so much one of ordering, but one of line-drawing. It is clear that a 25-year sentence generally is more severe than a 15-year sentence, [Footnote 19] but in most cases it would be difficult to decide that the former violates the Eighth Amendment while the latter does not. Decisions of this kind, although troubling, are not unique to this area. The courts are constantly called upon to draw similar lines in a variety of contexts.The Sixth Amendment offers two good examples. A State is constitutionally required to provide an accused with a speedy trial, Klopfer v. North Carolina, 386 U. S. 213 (1967), but the delay that is permissible must be determined on a case-by-case basis."[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case. . . . "Barker v. Wingo, 407 U. S. 514, 407 U. S. 522 (1972) (unanimous opinion). In Barker, we identified Page 463 U. S. 295 some of the objective factors that courts should consider in determining whether a particular delay was excessive. Id. at 407 U. S. 530. None of these factors is"either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant."Id. at 407 U. S. 533. Thus the type of inquiry that a court should conduct to determine if a given sentence is constitutionally disproportionate is similar to the type of inquiry required by the Speedy Trial Clause.The right to a jury trial is another example. Baldwin v. New York, 399 U. S. 66 (1970), in particular, illustrates the line-drawing function of the judiciary, and offers guidance on the method by which some lines may be drawn. There the Court determined that a defendant has a right to a jury trial "where imprisonment for more than six months is authorized." Id. at 399 U. S. 69 (plurality opinion). In choosing the 6-month standard, the plurality relied almost exclusively on the fact that only New York City denied the right to a jury trial for an offense punishable by more than six months. As JUSTICE WHITE explained:"This near-uniform judgment of the Nation furnishes us with the only objective criterion by which a line could ever be drawn -- on the basis of the possible penalty alone -- between offenses that are and that are not regarded as 'serious' for purposes of trial by jury."Id. at 399 U. S. 72-73. In short, Baldwin clearly demonstrates that a court properly may distinguish one sentence of imprisonment from another. It also supports our holding that courts properly may look to the practices in other jurisdictions in deciding where lines between sentences should be drawn.IVIt remains to apply the analytical framework established by our prior decisions to the case before us. We first consider Page 463 U. S. 296 the relevant criteria, viewing Helm's sentence as life imprisonment without possibility of parole. We then consider the State's argument that the possibility of commutation is sufficient to save an otherwise unconstitutional sentence.AHelm's crime was "one of the most passive felonies a person could commit." State v. Helm, 287 N.W.2d at 501 (Henderson, J., dissenting). It involved neither violence nor threat of violence to any person. The $100 face value of Helm's "no account" check was not trivial, but neither was it a large amount. One hundred dollars was less than half the amount South Dakota required for a felonious theft. [Footnote 20] It is easy to see why such a crime is viewed by society as among the less serious offenses. See Rossi et al. at 229.Helm, of course, was not charged simply with uttering a "no account" check, but also with being a habitual offender. [Footnote 21] And a State is justified in punishing a recidivist more severely than it punishes a first offender. Helm's status, however, cannot be considered in the abstract. His prior offenses, although classified as felonies, were all relatively � 1 and S. 297� minor. [Footnote 22] All were nonviolent, and none was a crime against a person. Indeed, there was no minimum amount in either the burglary or the false pretenses statutes, see nn. 1 and | 1 and S. 277fn2|>2, supra, and the minimum amount covered by the grand larceny statute was fairly small, see 1 and S. 277fn3|>n. 3, supra. [Footnote 23]Helm's present sentence is life imprisonment without possibility of parole. [Footnote 24] Barring executive clemency, see infra at 463 U. S. 300-303, Helm will spend the rest of his life in the state penitentiary. This sentence is far more severe than the life sentence we considered in Rummel v. Estelle. Rummel was likely to have been eligible for parole within 12 years of his initial confinement, [Footnote 25] a fact on which the Court relied heavily. See 445 U.S. at 445 U. S. 280-281. Helm's sentence is the most severe punishment that the State could have imposed on any criminal for any crime. See n 6, supra. Only capital punishment, a penalty not authorized in South Dakota when Helm was sentenced, exceeds it. Page 463 U. S. 298We next consider the sentences that could be imposed on other criminals in the same jurisdiction. When Helm was sentenced, a South Dakota court was required to impose a life sentence for murder, S.D.Codified Laws § 22-16-12 (1979) (amended 1980), and was authorized to impose a life sentence for treason, § 22-8-1, first-degree manslaughter, § 22-16-15, first-degree arson, § 22-33-1, and kidnaping, S.D.Comp.Laws Ann. § 22-19-1 (1967 ed., Supp.1978) (amended 1979). No other crime was punishable so severely on the first offense. Attempted murder, S.D.Codified Laws § 22-4-1(5) (1979), placing an explosive device on an aircraft, § 22-14A-5, and first-degree rape, § 22-22-1 (amended 1980 and 1982), were only Class 2 felonies. Aggravated riot was only a Class 3 felony. § 22-10-5. Distribution of heroin, §§ 22-42-2 (amended 1982), 34-20B-13(7) (1977), and aggravated assault, § 22-18-1.1 (amended 1980 and 1981), were only Class 4 felonies.Helm's habitual offender status complicates our analysis, but relevant comparisons are still possible. Under § 22-7-7, the penalty for a second or third felony is increased by one class. Thus a life sentence was mandatory when a second or third conviction was for treason, first-degree manslaughter, first-degree arson, or kidnaping, and a life sentence would have been authorized when a second or third conviction was for such crimes as attempted murder, placing an explosive device on an aircraft, or first-degree rape. Finally, § 22-7-8, under which Helm was sentenced, authorized life imprisonment after three prior convictions, regardless of the crimes.In sum, there were a handful of crimes that were necessarily punished by life imprisonment: murder, and, on a second or third offense, treason, first-degree manslaughter, first-degree arson, and kidnaping. There was a larger group for which life imprisonment was authorized in the discretion of the sentencing judge, including: treason, first-degree manslaughter, first-degree arson, and kidnaping; attempted murder, placing an explosive device on an aircraft, and first Page 463 U. S. 299 degree rape on a second or third offense; and any felony after three prior offenses. Finally, there was a large group of very serious offenses for which life imprisonment was not authorized, including a third offense of heroin dealing or aggravated assault.Criminals committing any of these offenses ordinarily would be thought more deserving of punishment than one uttering a "no account" check -- even when the bad-check writer had already committed six minor felonies. Moreover, there is no indication in the record that any habitual offender other than Helm has ever been given the maximum sentence on the basis of comparable crimes. It is more likely that the possibility of life imprisonment under § 22-7-8 generally is reserved for criminals such as fourth-time heroin dealers, while habitual bad-check writers receive more lenient treatment. [Footnote 26] In any event, Helm has been treated in the same manner as, or more severely than, criminals who have committed far more serious crimes.Finally, we compare the sentences imposed for commission of the same crime in other jurisdictions. The Court of Appeals found that "Helm could have received a life sentence without parole for his offense in only one other state, Nevada," 684 F.2d at 586, and we have no reason to doubt this finding. See Tr. of Oral Arg. 21. At the very least, therefore, it is clear that Helm could not have received such a severe sentence in 48 of the 50 States. But even under Nevada law, a life sentence without possibility of parole is Page 463 U. S. 300 merely authorized in these circumstances. See Nev.Rev.Stat. § 207.010(2) (1981). We are not advised that any defendant such as Helm, whose prior offenses were so minor, actually has received the maximum penalty in Nevada. [Footnote 27] It appears that Helm was treated more severely than he would have been in any other State.BThe State argues that the present case is essentially the same as Rummel v. Estelle, for the possibility of parole in that case is matched by the possibility of executive clemency here. The State reasons that the Governor could commute Helm's sentence to a term of years. We conclude, however, that the South Dakota commutation system is fundamentally different from the parole system that was before us in Rummel.As a matter of law, parole and commutation are different concepts, despite some surface similarities. Parole is a regular part of the rehabilitative process. Assuming good behavior, it is the normal expectation in the vast majority of cases. The law generally specifies when a prisoner will be eligible to be considered for parole, and details the standards and procedures applicable at that time. See, e.g., Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979) (detailing Nebraska parole procedures); Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 477 (1972) ("the practice of releasing prisoners on parole Page 463 U. S. 301 before the end of their sentences has become an integral part of the penological system"). Thus it is possible to predict, at least to some extent, when parole might be granted. Commutation, on the other hand, is an ad hoc exercise of executive clemency. A Governor may commute a sentence at any time for any reason without reference to any standards. See, e.g., Connecticut Board of Pardons v. Dumschat, 452 U. S. 458 (1981).We explicitly have recognized the distinction between parole and commutation in our prior cases. [Footnote 28] Writing on behalf of the Morrissey Court, for example, CHIEF JUSTICE BURGER contrasted the two possibilities: "Rather than being an ad hoc exercise of clemency, parole is an established variation on imprisonment of convicted criminals." 408 U.S. at 408 U. S. 477. In Dumschat, THE CHIEF JUSTICE similarly explained that "there is a vast difference between a denial of parole . . . and a state's refusal to commute a lawful sentence." 452 U.S. at 452 U. S. 466.The Texas and South Dakota systems in particular are very different. In Rummel, the Court did not rely simply on the existence of some system of parole. Rather, it looked to the provisions of the system presented, including the fact that Texas had"a relatively liberal policy of granting 'good time' credits to its prisoners, a policy that historically has allowed a prisoner serving a life sentence to become eligible for parole in as little as 12 years."445 U.S. at 445 U. S. 280. A Texas prisoner became eligible for parole when his calendar time Page 463 U. S. 302 served plus "good conduct" time equaled one-third of the maximum sentence imposed or 20 years, whichever is less. Tex.Code Crim.Proc.Ann., Art. 42.12, § 15(b) (Vernon 1979). An entering prisoner earned 20 days good-time per 30 days served, Brief for Respondent in Rummel, O.T. 1979, No. 78-6386, p. 16, and this could be increased to 30 days good-time per 30 days served, see Tex.Rev.Civ.Stat.Ann., Art. 6181-1, §§ 2, 3 (Vernon Supp.1982-1983). Thus, Rummel could have been eligible for parole in as few as 10 years, and could have expected to become eligible, in the normal course of events, in only 12 years.In South Dakota, commutation is more difficult to obtain than parole. For example, the Board of Pardons and Paroles is authorized to make commutation recommendations to the Governor, see n. 7, supra, but § 24-13-4 provides that"no recommendation for the commutation of . . . a life sentence, or for a pardon . . shall be made by less than the unanimous vote of all members of the board."In fact, no life sentence has been commuted in over eight years, [Footnote 29] App. 29, while parole -- where authorized -- has been granted regularly during that period, Tr. of Oral Arg. 8-9. Furthermore, even if Helm's sentence were commuted, he merely would be eligible to be considered for parole. [Footnote 30] Not only is there no Page 463 U. S. 303 guarantee that he would be paroled, but the South Dakota parole system is far more stringent than the one before us in Rummel. Helm would have to serve three-fourths of his revised sentence before he would be eligible for parole, § 24-15-5, and the provision for good-time credits is less generous, § 24-5-1. [Footnote 31]The possibility of commutation is nothing more than a hope for "an ad hoc exercise of clemency." It is little different from the possibility of executive clemency that exists in every case in which a defendant challenges his sentence under the Eighth Amendment. Recognition of such a bare possibility would make judicial review under the Eighth Amendment meaningless.VThe Constitution requires us to examine Helm's sentence to determine if it is proportionate to his crime. Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct. He has been treated more harshly than other criminals in the State who have committed more serious crimes. He has been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a single State. We conclude that his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment. [Footnote 32] The judgment of the Court of Appeals is accordinglyAffirmed

U.S. Supreme CourtSolem v. Helm, 463 U.S. 277 (1983)Solem v. HelmNo. 82-492Argued March 29, 1983Decided June 28, 1983463 U.S. 277SyllabusIn 1979, respondent was convicted in a South Dakota state court of uttering a "no account" check for $100. Ordinarily the maximum punishment for that crime would have been five years' imprisonment and a $5,000 fine. Respondent, however, was sentenced to life imprisonment without possibility of parole under South Dakota's recidivist statute because of his six prior felony convictions -- three convictions for third-degree burglary and convictions for obtaining money under false pretenses, grand larceny, and third-offense driving while intoxicated. The South Dakota Supreme Court affirmed the sentence. After respondent's request for commutation was denied, he sought habeas relief in Federal District Court, contending that his sentence constituted cruel and unusual punishment under the Eighth and Fourteenth Amendments. The District Court denied relief, but the Court of Appeals reversed.Held:1. The Eighth Amendment's proscription of cruel and unusual punishments prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed. Pp. 463 U. S. 284-290.(a) The principle of proportionality is deeply rooted in common law jurisprudence. It was expressed in Magna Carta, applied by the English courts for centuries, and repeated in the English Bill of Rights in language that was adopted in the Eighth Amendment. When the Framers of the Eighth Amendment adopted this language, they adopted the principle of proportionality that was implicit in it. Pp. 463 U. S. 284-286.(b) The constitutional principle of proportionality has been recognized explicitly in this Court for almost a century. In several cases, the Court has applied the principle to invalidate criminal sentences. E.g., Weems v. United States, 217 U. S. 349. And the Court often has recognized that the Eighth Amendment proscribes grossly disproportionate punishments, even when it has not been necessary to rely on the proscription. Pp. 463 U. S. 286-288.(c) There is no basis for the State's assertion that the principle of proportionality does not apply to felony prison sentences. Neither the text of the Eighth Amendment nor the history behind it supports such an exception. Moreover, this Court's cases have recognized explicitly that Page 463 U. S. 278 prison sentences are subject to proportionality analysis. No penalty is per se constitutional. Pp. 463 U. S. 288-290.2. A court's proportionality analysis under the Eighth Amendment should be guided by objective criteria. Pp. 463 U. S. 290-295.(a) Criteria that have been recognized in this Court's prior cases include (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction, that is, whether more serious crimes are subject to the same penalty or to less serious penalties; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. Pp. 463 U. S. 290-292.(b) Courts are competent to judge the gravity of an offense, at least on a relative scale. Comparisons can be made in light of the harm caused or threatened to the victim or to society, and the culpability of the offender. There are generally accepted criteria for comparing the severity of different crimes, despite the difficulties courts face in attempting to draw distinctions between similar crimes. Pp. 463 U. S. 292-294.(c) Courts are also able to compare different sentences. For sentences of imprisonment, the problem is one of line-drawing. Decisions of this kind, although troubling, are not unique to this area. The courts are constantly called upon to draw similar lines in a variety of contexts. Cf. Barker v. Wingo, 407 U. S. 514; Baldwin v. New York, 399 U. S. 66. Pp. 463 U. S. 294-295.3. In light of the relevant objective criteria, respondent's sentence of life imprisonment without possibility of parole is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment. Pp. 463 U. S. 295-303.(a) Respondent's crime of uttering a "no account" check for $100 is viewed by society as among the less serious offenses. It involved neither violence nor threat of violence, and the face value of the check was not a large amount. Respondent's prior felonies were also relatively minor. All were nonviolent, and none was a crime against a person. Respondent's sentence was the most severe that the State could have imposed on any criminal for any crime. He has been treated in the same manner as, or more severely than, other criminals in South Dakota who have committed far more serious crimes. Nevada is the only other State that authorizes a life sentence without possibility of parole in the circumstances of this case, and there is no indication that any defendant such as respondent, whose prior offenses were so minor, has received the maximum penalty in Nevada. Pp. 463 U. S. 296-300.(b) The possibility of commutation of a life sentence under South Dakota law is not sufficient to save respondent's otherwise unconstitutional sentence on the asserted theory that this possibility matches the possibility of parole. Assuming good behavior, parole is the normal Page 463 U. S. 279 expectation in the vast majority of cases, and is governed by specified legal standards. Commutation is an ad hoc exercise of executive clemency that may occur at any time for any reason without reference to any standards. In South Dakota, no life sentence has been commuted in over eight years, while parole -- where authorized -- has been granted regularly during that period. Moreover, even if respondent's sentence were commuted, he merely would be eligible to be considered for parole. Rummel v. Estelle, 445 U. S. 263, distinguished. Pp. 463 U. S. 300-303.684 F.2d 582, affirmed.POWELL, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BURGER, C.J., filed a dissenting opinion, in which WHITE, REHNQUIST, and O'CONNOR, JJ., joined,post, p. 463 U. S. 304.

1987_86-327

JUSTICE STEVENS delivered the opinion of the Court.In 1978, the Secretary of Labor promulgated "interim regulations" to govern the processing of claims for black lung benefits filed between July 1, 1973, and April 1, 1980. See Page 484 U. S. 138 20 CFR pt. 727 (1987). Section 203 of those regulations prescribes five ways in which a claimant may prove that he is entitled to an "interim presumption" of eligibility. The question in this case concerns the burden of proof that the claimant must satisfy to invoke the presumption. The Court of Appeals held, Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (CA4 1986) (en banc), that a single item of qualifying evidence is always sufficient, whereas the Secretary of Labor contends that his regulation requires the claimant to establish at least one of the five qualifying facts by a preponderance of the evidence. Because we are not persuaded that the Secretary has misread his own regulation, we reverse.IAlthough some aspects of the black lung benefits program are rather complex, its broad outlines and relevant statutory provisions can be briefly described. Prolonged exposure to coal dust has subjected hundreds of thousands of coal miners to pneumoconiosis -- a serious and progressive pulmonary condition popularly known as "black lung." The tragic consequences of this crippling illness prompted Congress to authorize a special program for the benefit of its victims in 1969. Because that program has been developed through several statutory enactments, [Footnote 1] different rules govern claims filed during different periods of time. Those filed prior to July 1, 1973, were processed by the Social Security Administration (SSA) pursuant to regulations promulgated by the Secretary of the Department of Health, Education, and Welfare Page 484 U. S. 139 (HEW); when allowed, these "Part B" claims were paid from federal funds. [Footnote 2] "Part C" claims [Footnote 3] are those filed on or after July 1, 1973; they are paid by private employers or by a fund to which the employers contribute, and they are administered by the Director of the Office of Workers' Compensation Programs (the Director) pursuant to regulations promulgated by the Secretary of Labor (the Secretary). Part C of the program includes two subparts: claims filed after April 1, 1980, which are governed by "permanent criteria," [Footnote 4] and those filed prior to April 1, 1980, which are governed by the "interim regulations" at issue in this case. Despite the "interim" designation, these regulations are extremely important, because they apply to about 10,000 pending claims.There is no dispute about the Secretary's authority to promulgate the interim regulations. [Footnote 5] Nor is there any suggestion that they violate any express statutory command. The statute does require the Secretary to establish criteria for eligibility that "shall not be more restrictive than" the criteria that the Secretary of HEW had established for the administration of the Part B program, [Footnote 6] but the Court of Appeals did not hold that § 203 violates this standard. The statute also requires that "all relevant evidence" shall be considered, but it is clear that the regulation is consistent with that requirement [Footnote 7] -- the only dispute is over how much of the Page 484 U. S. 140 relevant evidence may be considered in determining whether the interim presumption shall be invoked. Thus, there is no need to parse statutory language to decide this case.The Court of Appeals' holding rests, at bottom, on two propositions: (1) the regulation's plain language mandates that the presumption be invoked on the basis of a single item of qualifying evidence; and (2) the Secretary's reading is not faithful to the purposes of the program as reflected in its legislative history. We shall consider each of these propositions after reviewing the substance of the regulation and the facts of the one case that presents the legal question we must decide. [Footnote 8] Page 484 U. S. 141IIDisability benefits are payable to a miner if (a) he or she is totally disabled, (b) the disability was caused, at least in part, by pneumoconiosis, and (c) the disability arose out of coal mine employment. All three of these conditions of eligibility are presumed if the claimant was engaged in coal mine employment for at least 10 years and if the claimant meets one of four medical requirements: [Footnote 9] (1) a chest X-ray establishes the presence of pneumoconiosis; (2) ventilatory studies establish the presence of a respiratory or pulmonary disease -- not necessarily pneumoconiosis -- of a specified severity; (3) blood gas studies demonstrate the presence of an impairment in the transfer of oxygen from the lungs to the blood; or (4) other Page 484 U. S. 142 medical evidence, including the documented opinion of a physician exercising reasonable medical judgment, establishes the presence of a totally disabling respiratory impairment. [Footnote 10] Page 484 U. S. 143 It is noteworthy that only the first of the four alternative methods of invoking the presumption requires proof that the claimant's disease is in fact pneumoconiosis. None of the methods requires proof of causation, and only the fourth requires proof of total disability.The second paragraph in the regulation describes how the presumption may be rebutted. [Footnote 11] It first provides that, in the adjudication of a claim, "all relevant medical evidence shall be considered." It then provides that the presumption is rebutted if the evidence establishes that the claimant is doing or is Page 484 U. S. 144 capable of doing his usual or comparable work, that his disability did not arise, even in part, out of coal mine employment, or that he does not have pneumoconiosis. Thus, in order to rebut the interim presumption, the employer has the burden of proving that at least one of the three conditions of eligibility is not satisfied. [Footnote 12]IIIRespondent Ray filed a claim for disability benefits with the Secretary in 1976. At the hearing before the ALJ, he proved that he had 16 years of coal mine employment. The ALJ placed 47 exhibits from the Director's file into evidence, [Footnote 13] and the employer introduced four additional exhibits. The record contained one qualifying [Footnote 14] X-ray interpretation, two qualifying ventilatory studies, and one qualifying physician's opinion. The record, however, also included seven Page 484 U. S. 145 nonqualifying X-ray interpretations, four nonqualifying ventilatory studies, and five nonqualifying physicians' opinions. [Footnote 15] After weighing the X-ray evidence, the ALJ concluded that it did not establish that Ray had pneumoconiosis, [Footnote 16] and, after balancing all the ventilatory studies, he concluded that they did not establish the presence of a chronic respiratory or pulmonary disease. [Footnote 17] Additionally, the ALJ found that the other medical evidence, including documented physicians' opinions, did not establish the presence of a totally disabling respiratory or pulmonary impairment. [Footnote 18] He therefore held Page 484 U. S. 146 that Ray was not entitled to the benefit of the interim presumption. [Footnote 19]The BRB affirmed the ALJ's order denying benefits. It first noted that Ray's"contention that subsection (a)(1) must be invoked where the record contains a single positive X-ray has previously been considered and rejected, [Footnote 20]"and it agreed with the ALJ's evaluation of the X-ray evidence and ventilatory studies. Finally, while disagreeing with some of the ALJ's reasoning, the Board reviewed and approved the ALJ's weighing of the physicians' opinions in the employer's favor.The Court of Appeals remanded for further proceedings. It held that the interim presumption had been invoked under § (a)(2) by the two qualifying ventilatory studies and under § (a)(4) by the one qualifying physician's opinion. The court did not rely on the positive X-ray interpretation, because it was not sufficiently identified to satisfy the requirements for X-ray evidence under § 718.102(c) of the Secretary's regulation. The court reversed the Board's denial of benefits, and remanded for the ALJ to determine whether the presumption had been rebutted. We granted certiorari, 479 U.S. 1029 (1987), to resolve the question presented by this case: whether one item of qualifying evidence is always sufficient to invoke the interim presumption, and thereby shift the burden of persuasion to the employer.IVThe Court of Appeals held that"the interim presumption under § 727.203(a)(1), (2), or (3) is established when there is Page 484 U. S. 147 credible evidence that a qualifying X-ray indicates the presence of pneumoconiosis, a single qualifying set of ventilatory studies indicates, pursuant to the regulatory standard, a chronic respiratory or pulmonary disease, or a single qualifying set of blood gas studies indicates, pursuant to the regulatory standard, an impairment in the transfer of oxygen from the lungs to the blood."785 F.2d at 426. The principal basis for this holding was the court's view that the plain language of the regulation makes it clear that a single positive X-ray necessarily invokes the presumption. In advancing that view, however, the court did not pause to consider the significance of the word "establishes" in § (a)(1). It read § (a)(1) as though it merely required a chest X-ray that constitutes evidence of the presence of pneumoconiosis, rather than one that actually "establishes" the presence of the disease.The Secretary's regulations, however, recognize the difference between an X-ray that tends to prove the presence of pneumoconiosis and one that can be said to establish it. Thus, in contrast to the use of the word "establishes" throughout § 727.203(a), the regulation defining the suitable quality of X-ray evidence refers to an X-ray that "shall constitute evidence of the presence or absence of pneumoconiosis." [Footnote 21] The Court of Appeals read § 203(a)(1) as though it merely required an X-ray that "constitutes evidence of the presence of pneumoconiosis." Had that been the Secretary's intent, presumably he would have used that language, as he did elsewhere, to explain that meaning.There is another reason why § (a)(1) cannot have been intended to refer to a single item of evidence. For the ordinary trier of fact -- even an ALJ who has heard many black lung benefit cases -- an X-ray may well be meaningless unless it is interpreted by a qualified expert. What may be persuasive to the ALJ, then, is not just the X-ray itself, but its interpretation Page 484 U. S. 148 by a specialist. And, of course, different experts may provide different readings of the same X-ray. As Judge Posner has observed:"Under the regulation, it is not the reading, but the Xray, that establishes the presumption. If one doctor interprets an X-ray as positive for black-lung disease, but 100 equally qualified doctors interpret the same X-ray as negative for the disease, nothing in the regulation requires the administrative law judge to disregard the negative readings."Cook v. DIrector, Office of Workers' Compensation Programs, 816 F.2d 1182, 1185 (CA7 1987). Thus, it seems perfectly clear that it is not the X-ray in isolation that "establishes" the presence of the disease; rather, the regulation must, at a minimum, have reference both to the X-ray itself and to other evidence that sheds light on the meaning and significance of the X-ray. [Footnote 22] Just as the ALJ must weigh conflicting interpretations of the same X-ray in Page 484 U. S. 149 order to determine whether it tends to prove or disprove the existence of pneumoconiosis, there would seem to be no reason why he must ignore all X-rays in a series except one. [Footnote 23]The Court of Appeals relied in large part on perceived internal inconsistencies in the Secretary's interpretation. In the rebuttal section, the regulation provides that, in "adjudicating a claim under this subpart, all relevant medical evidence shall be considered." The Court of Appeals interpreted this statement as requiring all relevant evidence to be considered on rebuttal. Since the Secretary's reading would make some evidence inadmissible for certain aspects of rebuttal, [Footnote 24] the Court of Appeals thought that reading violated the requirement that "all relevant medical evidence shall be considered."We disagree, for two reasons. First, nothing in the Secretary's position prevents "all relevant medical evidence" from being considered at some point during the proof process. To understand why this requirement was inserted at the beginning of the rebuttal section, it is important to understand its derivation. After the SSA adopted its interim presumption, its claims approval rate increased, in part due, it is thought, to factfinders' failing to consider all of the employers' relevant medical evidence. [Footnote 25] To assure that this problem would not infect adjudications under the new Labor interim presumption, Page 484 U. S. 150 the requirement of 30 U.S.C. § 923(b) that all relevant medical evidence be considered in adjudicating SSA claims was explicitly carried over into the Labor presumption's rebuttal section. Thus, that the "all relevant medical evidence" requirement appears at the beginning of the rebuttal section reflects the genesis of the concern, and does not indicate that the drafters intended a more limited evidentiary battle at the invocation stage. As long as relevant evidence will be considered at some point by the ALJ, the demand that the decision be made on the complete record is satisfied.Second, the cited provision refers to "adjudicating a claim under this subpart," and a "subpart" "may be used to group related sections in a part." 1 CFR § 21.9(b) (1987). All of 20 CFR § 727.203 (1987), the interim presumption, is within subpart C of part 727. Thus, nothing in the regulation requires all relevant medical evidence to be considered at the rebuttal phase; such evidence must simply be admissible at some point during the proof process.The Court of Appeals was persuaded as well that some of the rebuttal provisions would be superfluous under the Secretary's reading. For instance, if the claimant invokes the presumption by establishing the existence of pneumoconiosis under § (a)(1), the employer may not try to disprove pneumoconiosis under § (b)(4). This limitation on rebuttal, according to the Court of Appeals, renders the Secretary's position internally inconsistent.Again, we are constrained to disagree. Nothing in the regulation requires each rebuttal subsection to be fully available in each case. As long as the employer can introduce, say, nonqualifying X-rays at the invocation stage to oppose invocation under § (a)(1), it has been given the chance to show the nonexistence of pneumoconiosis. If the presumption is nonetheless invoked, the employer can still try to disprove total disability or causality. [Footnote 26] Page 484 U. S. 151Finally, there is some concern that the Secretary's position might permit a single negative X-ray interpretation to carry the day for the employer, in violation of the statute's mandate that "no claim for benefits . . . shall be denied solely on the basis of the results of [an X-ray]." § 923(b) (made applicable to Part C adjudications through § 902(f)(2)). The easy answer was provided by the dissent below:"a single negative X-ray may not . . . be drawn upon either as the sole basis for finding the invocation burden under (a)(1) not carried nor as the sole basis for finding the rebuttal burden under (b)(4) carried."785 F.2d at 445 (emphases added). Furthermore, in weighing conflicting X-ray readings ALJs will undoubtedly keep in mind the character of the black lung disease:"Since pneumoconiosis is a progressive and irreversible disease, early negative X-ray readings are not inconsistent with significantly later positive readings. . . . This proposition is not applicable where the factual pattern is reversed. In a situation . . . where the more recent X-ray evidence is negative and directly conflicting with Page 484 U. S. 152 earlier positive X-rays, it may be weighed with less regard to timing in light of the recognized principle that negative X-ray readings are not a trustworthy indicator of the absence of the disease."Elkins v. Beth-Elkhorn Corp., 2 BLR 1-683, 1-686 (Ben.Rev.Bd.1979).In sum, we find the Secretary's interpretation of his own regulation entirely consistent with its text.VThe Court of Appeals' holding that a single item of qualifying evidence always suffices to carry a claimant's invocation burden was based in part on its understanding of the legislative history of the black lung benefits statutes. 785 F.2d at 457-461. This conclusion is based on the clear congressional mandate for interim presumptions to reduce the number of benefit denials by both the SSA and Labor. While we agree that Congress did intend to ensure fewer benefit denials, we are not persuaded either that that goal has been frustrated by the Secretary's interpretation of the regulation or that Congress intended more specifically to require invocation of the presumption based solely on one item of a claimant's proof.In the early years of the benefits program, the SSA denied a high number of claims because of a perceived lack of proof of totally disabling pneumoconiosis due to coal mine employment. Congress mandated liberalized standards, and the SSA established an interim presumption to carry out this directive. § 410.490(b). In so doing, the SSA explained the problems with the prior scheme and the virtues of the new one:"In enacting the Black Lung Act of 1972, the Congress noted that adjudication of the large backlog of claims generated by the earlier law could not await the establishment of facilities and development of medical tests not presently available to evaluate disability due to Page 484 U. S. 153 pneumoconiosis, and that such claims must be handled under present circumstances in the light of limited medical resources and techniques. Accordingly, the Congress stated its expectancy that the Secretary would adopt such interim evidentiary rules and disability evaluation criteria as would permit prompt and vigorous processing of the large backlog of claims consistent with the language and intent of the 1972 amendments, and that such rules and criteria would give full consideration to the combined employment handicap of disease and age and provide for the adjudication of claims on the basis of medical evidence other than physical performance tests when it is not feasible to provide such tests. The provisions of this section establish such interim evidentiary rules and criteria. They take full account of the congressional expectation that, in many instances, it is not feasible to require extensive pulmonary function testing to measure the total extent of an individual's breathing impairment, and that an impairment in the transfer of oxygen from the lung alveoli to cellular level can exist in an individual even though his chest roentgenogram (X-ray) or ventilatory function tests are normal."§ 410.490(a).The SSA implemented this congressional desire to ease claimants' proof burdens by promulgating the interim presumption that serves as the antecedent to the one at issue in this case. The presumption, applicable to claims filed with the SSA before July 1, 1973, provides that a miner is presumed to be totally disabled due to pneumoconiosis if two conditions are met: first, either "[a] chest . . . X-ray . . . establishes the existence of pneumoconiosis" or"[i]n the case of a miner employed for at least 15 years in underground or comparable coal mine employment, ventilatory studies establish the presence of a chronic respiratory or pulmonary disease. . . ."§ 410.490(b)(1); second, "[t]he impairment established in accordance with [either of these medical requirements] Page 484 U. S. 154 arose out of coal mine employment.§ 410.490(b)(2). Additionally,"a miner who meets the [ventilatory studies] medical requirements . . . will be presumed to be totally disabled due to pneumoconiosis arising out of coal mine employment . . . if he has at least 10 years of the requisite coal mine employment."§ 410.490(b)(3).The SSA's interim rules further provide that the presumption can be rebutted if either "[t]here is evidence that the individual is, in fact, doing his usual coal mine work or comparable and gainful work" or"[o]ther evidence, including physical performance tests . . . establish[es] that the individual is able to do his usual coal mine work or comparable and gainful work."§ 410.490(c).As the SSA's claims approval rate increased, Labor's remained low, in large part because of the absence of an interim presumption by which a claimant would only have to prove one predicate fact. The interim presumption at issue in this case, promulgated as a result of congressional dissatisfaction with Labor's low claims approval rate, is substantially similar to the SSA interim presumption. It satisfies Congress' demand that Labor's criteria "shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973," 30 U.S.C. § 902(f)(2), i.e., no more restrictive than the SSA's interim presumption.Since Labor's interim presumption derived so directly from the SSA's, if the Court of Appeals' conclusion regarding single-item invocation were correct, one would expect to find SSA ALJ decisions permitting invocation in such a manner, and federal court opinions indicating approval. Instead, federal court decisions routinely referred to SSA ALJ invocation weighings without objection, and often with explicit approval. [Footnote 27] Thus, Page 484 U. S. 155 the legislative history of the Labor interim presumption does not establish that invocation must occur on a single piece of qualifying evidence. [Footnote 28] Page 484 U. S. 156VIUnder either the Court of Appeals' or the Secretary's interpretation of the regulation, a single item of qualifying evidence may be sufficient to invoke the presumption. Indeed, the authors of the regulation apparently expected that the presumption would regularly be invoked on the basis of a single item of qualifying evidence. [Footnote 29] Reasoning from that Page 484 U. S. 157 expectation, the Court of Appeals concluded that the presumption must be invoked whenever the record contains a single item of qualifying evidence. But as we have demonstrated above, that conclusion is compelled by neither the text nor the history of the regulation.Nor is it compelled by the underlying basis for the presumption. For black lung benefits presumptions, no less than any presumption established or recognized in law, are the product of both factual understandings and policy concerns. As a matter of fact, Congress could reasonably have concluded that it is highly probable that a person who engaged in coal mine employment for over a decade is totally disabled as a result of pneumoconiosis arising from that employment if he or she can prove any of the medical requirements specified in the regulation. [Footnote 30] That degree of probability Page 484 U. S. 158 is not, however, present when the claimant is merely in a position to offer a single item of qualifying evidence that is overcome by more reliable conflicting evidence.As a matter of policy, Congress was aware that it is difficult for coal miners whose health has been impaired by the insidious effects of their work environment to prove that their diseases are totally disabling and coal mine related, or that those diseases are, in fact, pneumoconiosis. Rather than merely providing a benefit for those miners who could prove each of the relevant facts by a preponderance of the evidence, Congress intended that those long-term miners who can show that they are truly diseased should have to prove no more. [Footnote 31] But if a miner is not actually suffering from the type of ailment with which Congress was concerned, there is no justification for presuming that that miner is entitled to benefits. For not only does that miner fall outside the class of those who need the assistance of an interim presumption, but he also is unlikely to be totally disabled from coal mine employment. By requiring miners to show that they suffer from the sort of medical impairment that initially gave rise to congressional concern, and then by requiring employers to shoulder the remainder of the proof burden, the Secretary's Page 484 U. S. 159 reading of the interim presumption's invocation burden satisfies both the purposes of the statute and the need for a logical connection between the proven fact and the presumed conclusion. [Footnote 32]In the end, the Secretary's view is not only eminently reasonable, but also is strongly supported by the fact that Labor wrote the regulation. The agency's interpretation, which is deserving of substantial deference "unless it is plainly erroneous or inconsistent with the regulation," Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 325 U. S. 414 (1945), has been, with one exception, consistently maintained through Board decisions. [Footnote 33] Likewise, prior to the Court of Appeals' decision in this case, the Courts of Appeals had routinely reviewed for substantial evidence the factfinder's invocation determination under a preponderance-of-the-evidence standard. [Footnote 34] Accordingly, Page 484 U. S. 160 there is no reason to downgrade the normal deference accorded to an agency's interpretation of its own regulation. Cf. Motor Vehicle Mfrs. Assn. of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U. S. 29 (1983). Page 484 U. S. 161The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. [Footnote 35]It is so ordered

U.S. Supreme CourtMullins Coal v. Director, OWC, 484 U.S. 135 (1987)Mullins Coal Co., Inc. v. Director,Office of Workers' CompensationPrograms, United States Department of LaborNo. 86-327Argued October 14, 1987Decided December 14, 1987484 U.S. 135SyllabusSection 203(a) of the Secretary of Labor's "interim regulations" governing black lung benefits claims filed between July 1, 1973, and April 1, 1980, provides that a claimant who engaged in coal mine employment for at least 10 years is entitled to an "interim presumption" of eligibility for disability benefits if he meets one of four medical requirements: (1) a chest X-ray "establishes" the presence of pneumoconiosis; (2) ventilatory studies establish the presence of any respiratory or pulmonary disease of a specified severity; (3) blood gas studies demonstrate an impairment in the transfer of oxygen from the lungs to the blood; or (4) other medical evidence, including the documented opinion of a physician exercising reasonable medical judgment, establishes a totally disabling respiratory impairment. Section 203(b) provides that "all relevant medical evidence shall be considered" in the adjudication of a claim, and that the interim presumption is rebutted if the evidence establishes (1) that the claimant is doing his usual or comparable work; (2) that he is capable of doing such work; (3) that his disability did not arise, even in part, out of coal mine employment; or (4) that he does not have pneumoconiosis. At the hearing on respondent Ray's 1976 claim, the record proved that Ray had 16 years of coal mine employment and contained one qualifying and seven nonqualifying X-ray interpretations, two qualifying and four nonqualifying ventilatory studies, and one qualifying and five nonqualifying physicians' opinions. After weighing the evidence, the Administrative Law Judge (ALJ) held that Ray was not entitled to the benefit of the interim presumption, and issued an order denying benefits, which the Benefits Review Board affirmed. However, the Court of Appeals reversed, rejecting the Secretary's position that § 203(a) requires the claimant to establish one of the qualifying facts by a preponderance of the evidence. The court held instead that a single item of qualifying evidence is always sufficient to invoke the interim presumption, and, upon finding that the presumption had been invoked in this case by the two qualifying ventilatory studies and the qualifying physician's opinion, remanded for the Page 484 U. S. 136 ALJ to determine whether the presumption had been rebutted by Ray's employer.Held: Section 203(a) requires that the claimant establish at least one of the qualifying facts by a preponderance of the evidence. Pp. 484 U. S. 146-160.(a) Section 203(a)'s plain language does not mandate that the interim presumption be invoked on the basis of a single item of qualifying evidence. The Court of Appeals' reading of § 203(a)(1) as though it merely requires X-ray evidence of the presence of pneumoconiosis ignores the fact that § 203(a)(1) expressly requires an X-ray that actually "establishes" the presence of the disease. It is not the X-ray in isolation that establishes that presence; rather, the regulation must, at a minimum, have reference both to the X-ray itself and to interpretations by qualified experts. The Secretary's view of the regulation, which would render some evidence inadmissible for certain aspects of rebuttal, is not inconsistent with § 203(b)'s requirement that "all relevant evidence shall be received" in adjudicating a claim, since nothing in the Secretary's position prevents all relevant evidence from being considered at some point in the proof process, and nothing in the regulation requires that all relevant medical evidence be considered at the rebuttal phase. Moreover, the Secretary's interpretation is not rendered internally inconsistent by his position that, if the claimant invokes the presumption by establishing the existence of pneumoconiosis under § 203(a)(1), the employer may not try to disprove the disease under § 203(b)(4), since nothing in the regulation requires each rebuttal subsection to be fully available in each case. Furthermore, the Secretary's position will not permit an employer to prevail solely on a single negative X-ray interpretation in violation of a statutory provision prohibiting claim denials on that basis. Thus, the Secretary's interpretation of § 203 is entirely consistent with the regulation's text. Pp. 484 U. S. 146-152.(b) The Court of Appeals erred in finding that the legislative history of the black lung benefits statutes requires a single-item-of-evidence invocation burden. Section 203(a)'s interim presumption derives directly from, and is substantially similar to, an interim presumption for black lung claims promulgated by the Social Security Administration, under which ALJs have routinely weighed the evidence at the invocation stage without judicial objection, and often with explicit court approval. Pp. 484 U. S. 152-155.(c) The fact that a single item of qualifying evidence may often be sufficient to invoke the interim presumption does not compel the conclusion that such evidence must always be sufficient. The factual understanding underlying the presumption -- that it is highly probable that a long-term coal miner is totally disabled by pneumoconiosis arising from his employment if he can prove any of the regulation's medical requirements Page 484 U. S. 137 -- is not present when the claimant merely offers a single item of qualifying evidence that is overcome by more reliable conflicting evidence. Similarly, the policy concern underlying the presumption -- that long-term miners who are truly diseased should not have to undertake the difficult task of proving that their diseases are totally disabling and coal mine related, or that they are in fact pneumoconiosis -- is not implicated if a miner is not actually suffering from the type of ailment with which Congress was concerned. Thus, the Secretary's reading of the interim presumption's invocation burden is eminently reasonable, and deserving of substantial deference. Pp. 484 U. S. 156-160.785 F.2d 424, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which, REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 484 U. S. 161.

1982_82-65

JUSTICE POWELL delivered the opinion of the Court.The issue is whether the State of Wyoming violated the Equal Protection Clause by allocating one of the 64 seats in its House of Representatives to a county the population of which is considerably lower than the average population per state representative.ISince Wyoming became a State in 1890, its legislature has consisted of a Senate and a House of Representatives. The State's Constitution provides that each of the State's counties "shall constitute a senatorial and representative district," and that "[e]ach county shall have at least one senator and one representative." The senators and representatives are required to be "apportioned among the said counties as nearly as may be according to the number of their inhabitants." Wyo. Const., Art. 3, § 3. [Footnote 1] The State has had 23 counties since 1922. Because the apportionment of the Wyoming House has been challenged three times in the past 20 years, some background is helpful.In 1963, voters from the six most populous counties filed suit in the District Court for the district of Wyoming challenging the apportionment of the State's 25 senators and 61 representatives. The three-judge District Court held that the apportionment of the Senate -- one senator allocated to each of the State's 23 counties, with the two largest counties having two senators -- so far departed from the principle of population equality that it was unconstitutional. Schaefer v. Thomson, 240 F. Supp. 247, 251-252 (Wyo.1964), supplemented, Page 462 U. S. 838 251 F. Supp. 450 (1965), aff'd, sub nom. Harrison v. Schaefer, 383 U. S. 269 (1966). [Footnote 2] But the court upheld the apportionment of the State House of Representatives. The State's constitutional requirement that each county shall have at least one representative had produced deviations from population equality: the average deviation from the ideal number of residents per representative was 16%, while the maximum percentage deviation between largest and smallest number of residents per representative was 90%. See 1 App. Exhibits 16. The District Court held that these population disparities were justifiable as"the result of an honest attempt, based on legitimate considerations, to effectuate a rational and practical policy for the house of representatives under conditions as they exist in Wyoming."240 F. Supp. at 251.The 1971 reapportionment of the House was similar to that in 1963, with an average deviation of 15% and a maximum deviation of 86%. 1 App. Exhibits 18. Another constitutional challenge was brought in the District Court. The three-judge court again upheld the apportionment of the House, observing that only "five minimal adjustments" had been made since 1963, with three districts gaining a representative and two districts losing a representative because of population shifts. Thompson v. Thomson, 344 F. Supp. 1378, 1380 (Wyo.1972).The present case is a challenge to Wyoming's 1981 statute reapportioning its House of Representatives in accordance with the requirements of Art. 3, 3, of the State Constitution. Wyo.Stat. § 28-2-109 (Supp.1983). [Footnote 3] The 1980 census Page 462 U. S. 839 placed Wyoming's population at 469,557. The statute provided for 64 representatives, meaning that the ideal apportionment would be 7,337 persons per representative. Each county was given one representative, including the six counties the population of which fell below 7,337. The deviations from population equality were similar to those in prior decades, with an average deviation of 16% and a maximum deviation of 89%. See 1 App. Exhibits 19-20.The issue in this case concerns only Niobrara County, the State's least populous county. Its population of 2,924 is less than half of the ideal district of 7,337. Accordingly, the general statutory formula would have dictated that its population for purposes of representation be rounded down to zero. See 28-2-109(a)(ii). This would have deprived Niobrara County of its own representative for the first time since it became a county in 1913. The state legislature found, however, that"the opportunity for oppression of the people of this state or any of them is greater if any county is deprived a representative in the legislature than if each is guaranteed at least one (1) representative. [Footnote 4]"It therefore followed the Page 462 U. S. 840 State Constitution's requirement and expressly provided that a county would receive a representative even if the statutory formula rounded the county's population to zero. § 28-2-109(a)(iii). Niobrara County thus was given one seat in a 64-seat House. The legislature also provided that, if this representation for Niobrara County were held unconstitutional, it would be combined with a neighboring county in a single representative district. The House then would consist of 63 representatives. § 28-2-109(a)(iv).Appellants, members of the state League of Women Voters and residents of seven counties in which the population per representative is greater than the state average, filed this lawsuit in the District Court for the District of Wyoming. They alleged that,"[b]y granting Niobrara County a representative to which it is not statutorily entitled, the voting privileges of Plaintiffs and other citizens and electors of Wyoming similarly situated have been improperly and illegally diluted in violation of the 14th Amendment. . . ."App. 3-4. They sought declaratory and injunctive relief that would prevent the State from giving a separate representative to Niobrara Page 462 U. S. 841 County, thus implementing the alternative plan calling for 63 representatives.The three-judge District Court upheld the constitutionality of the statute. 536 F. Supp. 780 (1982). The court noted that the narrow issue presented was the alleged discriminatory effect of a single county's representative, and concluded, citing expert testimony, that "the dilution' of the plaintiffs' votes is de minimis when Niobrara County has its own representative." Id. at 783. The court also found that Wyoming's policy of granting a representative to each county was rational and, indeed, particularly well-suited to the special needs of Wyoming. Id. at 784. [Footnote 5]We noted probable jurisdiction, 459 U.S. 819 (1982), and now affirm. Page 462 U. S. 842IIAIn Reynolds v. Sims, 377 U. S. 533, 377 U.S. 568 (1964), the Court held that "the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis." This holding requires only "that a State make an honest and good faith effort to construct districts . . . as nearly of equal population as is practicable," for "it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters." Id. at 377 U.S. 577. See Gaffney v. Cummings, 412 U. S. 735, 412 U. S. 745-748 (1973) (describing various difficulties in measurement of population).We have recognized that some deviations from population equality may be necessary to permit the States to pursue other legitimate objectives, such as "maintain[ing] the integrity of various political subdivisions" and "providing for compact districts of contiguous territory." Reynolds, supra, at 377 U.S. 578. As the Court stated in Gaffney,"[a]n unrealistic overemphasis on raw population figures, a mere nose count in the districts, may submerge these other considerations and itself furnish a ready tool for ignoring factors that in day-to-day operation are important to an acceptable representation and apportionment arrangement."412 U.S. at 412 U. S. 749.In view of these considerations, we have held that"minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State."Id. at 412 U. S. 745. Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. See, e.g., Connor v. Finch, 431 U. S. 407, 431 U. S. 418 (1977); White v. Regester, 412 U. S. 755, 412 U. S. 764 (1973). A plan with larger Page 462 U. S. 843 disparities in population, however, creates a prima facie case of discrimination, and therefore must be justified by the State. See Swann v. Adams, 385 U. S. 440, 385 U. S. 444 (1967) ("De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis, and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy"). The ultimate inquiry, therefore, is whether the legislature's plan "may reasonably be said to advance [a] rational state policy" and, if so, "whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits." Mahan v. Howell, 410 U. S. 315, 410 U. S. 328 (1973).BIn this case, there is no question that Niobrara County's deviation from population equality -- 60% below the mean -- is more than minor. There also can be no question that Wyoming's constitutional policy -- followed since statehood -- of using counties as representative districts and ensuring that each county has one representative is supported by substantial and legitimate state concerns. In Abate v. Mundt, 403 U. S. 182, 403 U. S. 185 (1971), the Court held that "a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality." See Mahan v. Howell, supra, at 410 U. S. 329. Indeed, the Court in Reynolds v. Sims, supra, singled out preservation of political subdivisions as a clearly legitimate policy. See 377 U.S. at 377 U.S. 580-581.Moreover, it is undisputed that Wyoming has applied this factor in a manner "free from any taint of arbitrariness or discrimination." Roman v. Sincock, 377 U. S. 695, 377 U. S. 710 (1964). The State's policy of preserving county boundaries is based on the State Constitution, has been followed for decades, and has been applied consistently throughout the State. As the Page 462 U. S. 844 District Court found, this policy has particular force, given the peculiar size and population of the State and the nature of its governmental structure. See n 5, supra; 536 F. Supp. at 784. In addition, population equality is the sole other criterion used, and the State's apportionment formula ensures that population deviations are no greater than necessary to preserve counties as representative districts. See Mahan v. Howell, supra, at 410 U. S. 326 (evidence is clear that the plan "produces the minimum deviation above and below the norm, keeping intact political boundaries'"). Finally, there is no evidence of "a built-in bias tending to favor particular political interests or geographic areas." Abate v. Mundt, supra, at 403 U. S. 187. As Judge Doyle stated below:"[T]here is not the slightest sign of any group of people being discriminated against here. There is no indication that the larger cities or towns are being discriminated against; on the contrary, Cheyenne, Laramie, Casper, Sheridan, are not shown to have suffered in the slightest . . . degree. There has been no preference for the cattle-raising or agricultural areas as such."536 F. Supp. at 788 (specially concurring).In short, this case presents an unusually strong example of an apportionment plan the population variations of which are entirely the result of the consistent and nondiscriminatory application of a legitimate state policy. [Footnote 6] This does not mean Page 462 U. S. 845 that population deviations of any magnitude necessarily are acceptable. Even a neutral and consistently applied criterion such as use of counties as representative districts can frustrate Reynolds' mandate of fair and effective representation if the population disparities are excessively high. [Footnote 7]"[A] State's policy urged in justification of disparity in district population, however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality."Mahan v. Howell, supra, at 410 U. S. 326. It remains true, however, as the Court in Reynolds noted, that consideration must be given "to the character as well as the degree of deviations from a strict population basis." 377 U.S. at 377 U.S. 581. The consistency of application and the neutrality of effect of the Page 462 U. S. 846 nonpopulation criteria must be considered along with the size of the population disparities in determining whether a state legislative apportionment plan contravenes the Equal Protection Clause.CHere we are not required to decide whether Wyoming's nondiscriminatory adherence to county boundaries justifies the population deviations that exist throughout Wyoming's representative districts. Appellants deliberately have limited their challenge to the alleged dilution of their voting power resulting from the one representative given to Niobrara County. [Footnote 8] The issue therefore is not whether a 16% average deviation and an 89% maximum deviation, considering the state apportionment plan as a whole, are constitutionally permissible. Rather, the issue is whether Wyoming's policy of preserving county boundaries justifies the additional deviations from population equality resulting from the provision of representation to Niobrara County. [Footnote 9] Page 462 U. S. 847It scarcely can be denied that, in terms of actual effect on appellants' voting power, it matters little whether the 63-member or 64-member House is used. The District Court noted, for example, that the seven counties in which appellants reside will elect 28 representatives under either plan. The only difference, therefore, is whether they elect 43.75% of the legislature (28 of 64 members) or 44.44% of the legislature (28 of 63 members). 536 F. Supp. at 783. [Footnote 10] The District Court aptly described this difference as "de minimis." Ibid.We do not suggest that a State is free to create and allocate an additional representative seat in any way it chooses simply because that additional seat will have little or no effect on the remainder of the State's voters. The allocation of a representative to a particular political subdivision still may violate the Equal Protection Clause if it greatly exceeds the population variations existing in the rest of the State and if the State provides no legitimate justifications for the creation of that seat. Here, however, considerable population variations will remain even if Niobrara County's representative is eliminated. Under the 63-member plan, the average deviation per representative would be 13% and the maximum deviation would be 66%. See 1 App. Exhibits 22. These statistics make clear that the grant of a representative to Niobrara County is not a significant cause of the population deviations that exist in Wyoming.Moreover, we believe that the differences between the two plans are justified on the basis of Wyoming's longstanding and legitimate policy of preserving county boundaries. See supra at 462 U. S. 841, n. 5, and 462 U. S. 843-844. Particularly where there is no "taint of arbitrariness or discrimination," Roman v. Sincock, 377 U.S. at 377 U. S. 710, substantial deference is to be accorded the political decisions of the people of a State acting Page 462 U. S. 848 through their elected representatives. Here it is noteworthy that, by enacting the 64-member plan, the State ensured that its policy of preserving county boundaries applies nondiscriminatorily. The effect of the 63-member plan would be to deprive the voters of Niobrara County of their own representative, even though the remainder of the House of Representatives would be constituted so as to facilitate representation of the interests of each county. See 536 F. Supp. at 784; id. at 786 (Doyle, J., specially concurring). In these circumstances, we are not persuaded that Wyoming has violated the Fourteenth Amendment by permitting Niobrara County to have its own representative.The judgment of the District Court isAffirmed

U.S. Supreme CourtBrown v. Thomson, 462 U.S. 835 (1983)Brown v. ThomsonNo. 82-65Argued March 21, 1983Decided June 22, 1983462 U.S. 835SyllabusThe Wyoming Legislature consists of a Senate and a House of Representatives. The State Constitution provides that each of the State's 23 counties shall constitute a senatorial and representative district and shall have at least one senator and one representative, and requires the senators and representatives to be apportioned among the counties "as nearly as may be according to the number of their inhabitants." A 1981 Wyoming statute reapportioned the House of Representatives and provided for 64 representatives. Based on the 1980 census placing Wyoming's population at 469,557, the ideal apportionment would have been 7,337 persons per representative. But the reapportionment resulted in an average deviation from population equality of 16% and a maximum deviation of 89%. Niobrara County, the State's least populous county, was given one representative, even though its population was only 2,924, the legislature having provided that a county would have a representative even if the statutory formula rounded the county's population to zero. The legislature also provided that, if Niobrara County's representation were held unconstitutional, it would be combined with a neighboring county in a single district, so that the House would consist of 63 representatives. Appellants (members of the League of Women Voters and residents of seven counties in which the population per representative is greater than the state average) filed an action in Federal District Court, alleging that granting Niobrara County a representative diluted the voting privileges of appellants and other voters similarly situated in violation of the Fourteenth Amendment, and seeking declaratory and injunctive relief. The District Court upheld the constitutionality of the reapportionment statute.Held: Wyoming has not violated the Equal Protection Clause of the Fourteenth Amendment by permitting Niobrara County to have its own representative. Pp. 462 U. S. 842-848.(a) Some deviations from population equality may be necessary to permit the States to pursue other legitimate objectives such as "maintain[ing] the integrity of various political subdivisions" and "provid[ing] for compact districts of contiguous territory." Reynolds v. Sims, 377 U. S. 533, 377 U.S. 578. But an apportionment plan with population disparities larger Page 462 U. S. 836 than 10% creates a prima facie case of discrimination, and therefore must be justified by the State, the ultimate inquiry being whether the plan may reasonably be said to advance a rational state policy and, if so whether the population disparities resulting from the plan exceed constitutional limits. Pp. 462 U. S. 842-843.(b) This case presents an unusually strong example of an apportionment plan the population variations of which are entirely the result of the consistent and nondiscriminatory application of a legitimate state policy. Wyoming, since statehood, has followed a constitutional policy of using counties as representative districts and ensuring that each county has one representative. Moreover, Wyoming has applied the factor of preserving political subdivisions free from any taint of arbitrariness or discrimination. Pp. 462 U. S. 843-846.(c) Wyoming's policy of preserving county boundaries justifies the additional deviations from population equality resulting from the provision of representation for Niobrara County. Considerable population variations would remain even if Niobrara County's representative were eliminated. Under the 63-member plan, the average deviation per representative would be 13% and the maximum deviation would be 66%. These statistics make it clear that the grant of a representative to Niobrara County is not a significant cause of the population deviations in Wyoming. Moreover, the differences between the two plans are justified on the basis of the above policy of preserving county boundaries. By enacting the 64-member plan, the State ensured that this policy applies nondiscriminatorily, whereas the effect of the 63-member plan would be to deprive Niobrara County voters of their own representative. Pp. 462 U. S. 846-848.536 F. Supp. 780, affirmed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, in which STEVENS, J., joined, post, p. 462 U. S. 848. BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined, post, p. 462 U. S. 850. Page 462 U. S. 837

1968_29

MR. JUSTICE MARSHALL delivered the opinion of the Court.Involved in this case are 11 sales of concentrated phosphate made between 1961 and 1966 by appellee association. The phosphate was supplied by the association's members, [Footnote 1] which are all producers of fertilizer, and was Page 393 U. S. 201 then shipped to the Republic of Korea under the United States foreign aid program. The Government, in a civil antitrust complaint filed on December 21, 1964, contended that the concerted activities of the association and its members in regard to these 11 sales violated § 1 of the Sherman Act, 26 Stat. 209 (1890), as amended, 15 U.S.C. § 1. Appellees defended on the ground, inter alia, that their activities were exempted from antitrust liability by § 2 of the Webb-Pomerene Act, 40 Stat. 517 (1918), 15 U.S.C. § 62, [Footnote 2] as "act[s] done in the course of export trade." The trial court held that the Webb-Pomerene Act did immunize appellees' conduct, 273 F. Supp. 263 (1967), and dismissed the complaint. Page 393 U. S. 202 The Government perfected a direct appeal to this Court under the Expediting Act, 32 Stat. 823 (1903), as amended, 15 U.S.C. § 29. Probable jurisdiction was noted, 390 U.S. 1001 (1968).IWe are met at the outset with appellees' contention that this case is now moot. Appellees' argument rests on two events which occurred after the case had been submitted to the District Court. On January 1, 1967, the Agency for International Development (AID), the State Department agency in charge of the foreign aid program, amended its regulations to preclude Webb-Pomerene associations from bidding on certain procurement contracts whenever procurement was limited to United States suppliers. [Footnote 3] According to appellees, this new regulation made it uneconomical for the association to continue in operation, [Footnote 4] since a large proportion of AID-financed procurement is limited to American sources. [Footnote 5] Accordingly, on December 28, 1967, appellee association dissolved itself. [Footnote 6] The new regulation and the dissolution, we are told, moot this case.Two factors make this argument untenable. First of all, the dissolved association was not the only defendant in this case. The Government sought injunctive relief against the association's members as well; they were to be Page 393 U. S. 203 prohibited from forming any new export associations without court approval and from continuing in effect any prices jointly agreed upon. Therefore, even if dissolution would have made it impossible to frame effective relief were the association the only party, here there is no such difficulty. Secondly, the new AID regulation does not apply to all contracts on which the former members of the association might bid. Whenever foreign bidders are eligible, AID still permits American Webb-Pomerene associations to compete. In fact, foreign bidders were eligible in all 11 of the transactions which gave rise to this suit. Therefore, however much the new regulation may reduce the practical importance of this case, it does not completely remove the controversy. Absent the relief prayed for, appellees would be free to act in concert in certain situations where the Government contends they must compete.The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave "[t]he defendant . . . free to return to his old ways." United States v. W. T. Grant Co., 345 U. S. 629, 345 U. S. 632 (1953); see, e.g., United States v. Trans-Missouri Freight Assn., 166 U. S. 290 (1897). A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. But here we have only appellees' own statement that it would be uneconomical for them to engage in any further joint operations. Such a statement, standing alone, cannot suffice to satisfy the heavy burden of persuasion which we have held rests upon those in appellees' shoes. United States v. W. T. Grant Co., 345 U.S. at 345 U. S. 633. Of course, it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. Id. at 345 U. S. 633-636. This is Page 393 U. S. 204 a matter for the trial judge. But this case is not technically moot, an appeal has been properly taken, and we have no choice but to decide it.IIThe 11 transactions involved in this case were not simple cash purchases by the Republic of Korea. [Footnote 7] Not only were they financed by the United States Government; AID retained effective control over them at every stage.The transactions involved were controlled by an impressive network of international treaties and agreements, as well as by American statutes, regulations, and administrative procedures. The procurement process, as revealed by the stipulated record, was rather involved. It began when funds were appropriated by Congress. Those funds were allocated to various development programs by AID, in accordance with the provisions of the applicable statutes and AID's assessments of its priorities. The money allocated to Korea by this process was not simply shipped to Seoul, to be used as Korea wished. In fact, most of it never left this country. In accordance with a series of agreements, Korea was authorized to request that the United States finance purchases of certain "eligible commodities." [Footnote 8] A rather complicated "Procurement Page 393 U. S. 205 Authorization Application" was then prepared on an AID form for Korean signature. The application sets forth not only the goods to be purchased, but also rather detailed specifications of quality, delivery plans, bidding procedures, and a statement explaining Korea's need for the goods. Even though AID officials obviously must have participated in drafting these "requests," AID was in no way obligated to approve them. The agreement with Korea specifically states that AID"may decline to finance any specific commodity or service when, in its judgment, such financing would be inconsistent with the purposes of this grant or of the Foreign Assistance Act of 1961, as amended."When each transaction was approved, a "Procurement Authorization" was issued by AID; it was specifically made subject to detailed regulations which specify the procedures to be followed in awarding any contracts. [Footnote 9] It also contained an authorization to a specified American bank to pay for the goods to be procured.After AID had in this way chosen what goods were to be purchased, either of two methods of procurement was used. In two cases, the Government itself let the contracts, through its General Services Administration. In the other nine cases, the formal act of letting the contracts was performed by the Office of Supply of the Republic of Korea (OSROK). In performing this task, the Koreans were subject to detailed regulation by AID. The invitation for bids even had to be submitted to AID so that it could be circulated in this country. All documents had to be in English, and criteria for selecting the winning contractors were carefully defined in advance. An abstract of bids received and a notice naming the contractor selected had to be sent to Washington. Finally, a letter of credit was issued, the supplier paid, and the payor bank reimbursed by the United States Treasury. Page 393 U. S. 206 The goods were shipped consigned to OSROK, but AID -- as a last precaution -- reserved the right to vest title, in itself if "such action is necessary to assure compliance with the provisions or purposes of any act of Congress." 22 CFR § 201.44 (1968).We are asked to decide whether transactions of this sort constitute "act[s] done in the course of export trade," within the meaning of the Webb-Pomerene exemption from the Sherman Act. [Footnote 10] Although the Webb-Pomerene Act has been on the statute books for a half century, this is the first time this Court has been called upon to interpret the meaning of the words "export trade." Upon a full consideration of the language, the purpose, and the legislative history of the statute, we reverse the judgment below.IIIThe Webb-Pomerene Act was passed "to aid and encourage our manufacturers and producers to extend our foreign trade." H.R.Rep. No. 1118, 64th Cong., 1st Sess., 1 (1916). Congress felt that American firms needed the power to form joint export associations in order to compete with foreign cartels. But while Congress was willing to create an exemption from the antitrust laws to serve this narrow purpose, the exemption created was carefully hedged in to avoid substantial injury to domestic interests. Congress evidently made the economic judgment that joint export associations could increase American foreign trade without depriving American consumers of the main advantages of competition.This reading of the Act is confirmed both by its structure and its legislative history. The Act itself contains Page 393 U. S. 207 a number of provisos obviously designed to protect domestic interests from the combinations Congress was authorizing. No act done by the export association could be "in restraint of trade within the United States," § 2, 15 U.S.C. § 62; the words "export trade" were to exclude, among other things, "selling for consumption . . . within the United States," § 1, 15 U.S.C. § 61, and the association was forbidden to enter into any agreement"which artificially or intentionally enhances or depresses prices within the United States . . . . or which substantially lessens competition within the United States or otherwise restrains trade therein,"§ 2, 15 U.S.C. § 62.The legislative history is even more explicit. During the hearings on the bill, one Congressman, Charles C. Carlin of Virginia, stated clearly what was later to be one of the dominant themes of the floor debate. In a question addressed to the Chairman of the Federal Trade Commission, who was testifying in support of the bill, he said:"I am frank to say that, personally, I have no sympathy with what a foreigner pays for our products; I would like to see the American manufacturers get the largest price possible, but if, by indirection, we are going to set up a system which is going to fix a higher price eventually at home, through a combination as suggested in this bill, I think you can very well see that such a system is a very dangerous one."Hearings before the House Committee on the Judiciary on H.R. 16707, 64th Cong., 1st Sess., 7 (1916). The same theme was reiterated on the floor by the Act's two main sponsors. Senator Pomerene said bluntly,"[W]e have not reached that high plane of business morals which will permit us to extend the same privileges Page 393 U. S. 208 to the peoples of the earth outside of the United States that we extend to those within the United States."55 Cong.Rec. 2787 (1917). And Congressman Webb declared,"I would be willing that there should be a combination between anybody or anything for the purpose of capturing the trade of the world, if they do not punish the people of the United States in doing it."55 Cong.Rec. 3580 (1917).In this atmosphere, the Act was passed. It is clear what Congress was doing; it thought it could increase American exports by depriving foreigners of the benefits of competition among American firms, without in any significant way injuring American consumers. Cf. United States Alkali Export Assn. v. United States, 325 U. S. 196, 325 U. S. 211 (1945). The validity of this economic judgment is not for us to question, but it is quite relevant in interpreting the language Congress chose. The question before us is whether Congress meant its exemption to insulate transactions initiated, controlled, and financed by the American Government just because a foreign government is the nominal "purchaser." We think it did not.In interpreting the antitrust laws, we are not bound by formal conceptions of contract law. Simpson v. Union Oil Co., 377 U. S. 13 (1964). We must look at the economic reality of the relevant transactions. Here, although the fertilizer shipments were consigned to Korea, and although, in most cases, Korea formally let the contracts, American participation was the overwhelmingly dominant feature. The burden of noncompetitive pricing fell not on any foreign purchaser, but on the American taxpayer. The United States was, in essence, furnishing fertilizer to Korea. AID selected the commodity, determined the amount to be purchased, controlled the contracting process, and paid the bill. The foreign elements in the transactions were, by comparison, insignificant. Page 393 U. S. 209 It stretches neither the language nor the purpose of the Act to determine that such sales are not "exports."Appellees contend that a contrary result should be reached because they were competing for contracts with foreign suppliers. Evidently, it is their contention that they therefore fall within the class which Congress intended to allow to form export associations. But AID has already given American suppliers great competitive advantages in their battle with foreign firms. The governing statute requires a preference for American procurement. Foreign Assistance Act of 1961, § 604, 75 Stat. 439, 22 U.S.C. § 2354. On none of the contracts involved here were any of the major trading nations of the world eligible to compete; procurement was limited essentially to the United States and the underdeveloped countries. To say that American producers need an additional stimulus to be able to compete strains credulity. The major impact of allowing the combination appellees desire would not be to encourage American exports; it would be to place the burden of noncompetitive pricing on the shoulders of the American taxpayer. But whatever the impact on exports might be, it is clear that the framers of the Webb-Pomerene Act did not intend that Americans should be deprived of the main benefits of competition among American firms. [Footnote 11] Since, in all relevant aspects, the transactions involved here were American, not Korean, we hold that they are not "export trade" Page 393 U. S. 210 within the meaning of the Webb-Pomerene Act. On remand, the District Court may decide the other issues relevant to a resolution of the controversy.Reversed

U.S. Supreme CourtUnited States v. Phosphate Export Assn., 393 U.S. 199 (1968)United States v. Concentrated Phosphate Export Assn., Inc.No. 29Argued October 24, 1968Decided November 25, 1968393 U.S. 199SyllabusThe Government filed a civil antitrust action against appellee association and its member firms charging violations of § 1 of the Sherman Act with regard to 11 sales by the association of concentrated phosphate to the Republic of Korea under the United States foreign aid program. In two cases, the Government itself let the contracts, and the remaining nine were let by an agency of the Korean Government. The Agency for International Development (AID) retained effective control over the transactions, from approving the procurement, through the financing thereof by the United States, to the shipping. The trial court upheld appellees' contention that they were exempt from antitrust liability under § 2 of the Webb-Pomerene Act as acts "done in the course of export trade." Appellee association has since dissolved itself, alleging that a recent AID regulation has made continued operation uneconomical.Held:1. The case is not moot. Pp. 393 U. S. 202-204.(a) The Government sought relief not only against the association, but also against its members. Pp. 393 U. S. 202-203.(b) The AID regulation does not apply to all contracts on which the former members of the association might bid. P. 393 U. S. 203.(c) Appellees' statement that it would be uneconomical to engage in further joint operations, standing alone, does not satisfy the stringent test for mootness, but appellees may show on remand that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. Pp. 393 U. S. 203-204.2. The antitrust exemption of the Webb-Pomerene Act, which was enacted to "extend our foreign trade" without significantly injuring American consumers, does not insulate transactions initiated, controlled, and financed by the United States Government, merely because a foreign government is the nominal "purchaser." Pp. 393 U. S. 206-210.(a) The economic reality of the transactions shows that American participation was overwhelmingly dominant, the foreign Page 393 U. S. 200 elements were comparatively insignificant, and the burden of noncompetitive pricing fell not on the foreign purchaser, but on the American taxpayer, and it stretches neither the language nor the purpose of the Act to determine that such sales are not "exports." Pp. 393 U. S. 208-209.(b) On the contracts involved here, the world's major trading nations were ineligible to compete, as procurement was limited essentially to the United States and the underdeveloped countries, so that the major impact of permitting the combination appellees desire would be not to encourage exports, but to deprive Americans of the main benefits of competition among American firms. P. 393 U. S. 209.273 F. Supp. 263, reversed and remanded.

1964_123

MR. JUSTICE WHITE delivered the opinion of the Court.Section 23(b) [Footnote 1] of the Federal Power Act [Footnote 2] requires any person desiring to construct a dam or other project on a nonnavigable stream, but one over which Congress has jurisdiction under its authority to regulate commerce, to file a declaration of intention with the Federal Power Commission. If the Commission finds that "the interests of interstate or foreign commerce would be affected by such proposed construction," the declarant may not construct or operate the project without a license. The issue here is whether the construction of a pumped storage hydroelectric project generating energy for interstate transmission is one which would affect the "interests of interstate or foreign commerce" within the intendment of the Act. Page 381 U. S. 92IRespondent Union Electric Co. (Union), operating generating plants and an interconnected transmission and distribution system in Missouri, Illinois, and Iowa, filed a declaration of intention pursuant to § 23(b) to construct a pumped storage hydroelectric facility, the Taum Sauk installation, as a part of Union's interstate system. The pumped storage plant, an engineering innovation of growing use, is to supplement the energy produced by other plants during periods of peak demands. During such periods, it generates energy through use of hydroelectric units driven by water falling from an elevated reservoir into a lower pool. [Footnote 3] During off-peak periods, it uses energy from other sources to pump water from the lower pool back to the headwater pool. [Footnote 4] The project is capable Page 381 U. S. 93 of creating up to 350 megawatts, and the energy created will be utilized in Missouri, Illinois, and possibly Iowa. Taum Sauk is to be located on the East Fork of the Black River, about four miles above the confluence of these waters. [Footnote 5] The East Fork is a nonnavigable tributary of the Black River, itself a navigable stream along with the White River into which it flows.The FPC found the East Fork was a stream "over which Congress has jurisdiction under its authority to regulate commerce," since it is a headwater of a navigable river system. The project would affect the interests of commerce and would require a license, the FPC also held, both because it contemplated the utilization of water power for the interstate transmission of electricity and because it would affect downstream navigability, 27 F.P.C. 801. The Court of Appeals reversed, 326 F.2d 535 (C.A.8th Cir.) holding that the only "commerce" which is relevant to the FPC's determination under § 23(b) is commerce on the downstream navigable waterway, and that the project in question would have no significant impact on water commerce. [Footnote 6] Absent an Page 381 U. S. 94 effect on downstream navigability, or on irrigation development, flood control projects or planned utilization of water resources, matters which might affect the interests of water commerce, a water power project located on the headwaters of a navigable river is a "local" activity beyond the licensing power and consequent regulatory controls of the FPC. Because the question is an unresolved one of jurisdiction over an important class of hydroelectric projects, we granted certiorari, 379 U.S. 812, and now reverse the judgment of the Court of Appeals. We have determined that its limitation of the FPC's licensing power to projects affecting commerce on navigable waters is founded upon an erroneous reading of the language of § 23(b) and the design and purposes of the Federal Water Power Act.IITo focus the inquiry, it is well to state what is not involved in this case. There is no question that the interstate transmission of electric energy is fully subject to the commerce powers of Congress. Public Utilities Comm'n v. Attleboro Steam & Electric Co., 273 U. S. 83, 273 U. S. 86; Electric Bond & Share Co. v. Securities & Exchange Comm'n, 303 U. S. 419, 303 U. S. 432-433. Nor is there any doubt today that projects generating energy for such transmission, such as Taum Sauk, affect commerce among the States, and therefore are within the purview of the commerce power quite without regard to the federal control of tributary streams and navigation. See Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 40-41; Labor Board v. Fruehauf Page 381 U. S. 95 Trailer Co., 301 U. S. 49; Consolidated Edison Co. of New York v. Labor Board, 305 U. S. 197; Katzenbach v. McClung, 379 U. S. 294, 379 U. S. 301-304. But see United States v. Appalachian Electric Power Co., 107 F.2d 769, rev'd on other grounds, 311 U. S. 311 U.S. 377. [Footnote 7] Thus, there are no constitutional doubts or barriers to the FPC's interpretation. The only question is whether Congress has required a license for a water power project utilizing the headwaters of a navigable river to generate energy for an interstate power system. We think an affirmative answer is required by both the language and purposes of the Act.The language of the Act, in our view, plainly requires a license in the circumstances of this case. Section 23(b) [Footnote 8] Page 381 U. S. 96 prohibits construction of nonlicensed hydroelectric projects on navigable streams, regardless of any effect, detrimental or beneficial, on navigation or commerce by water and requires those proposing a project on a nonnavigable stream to file a declaration of intention and to come before the Commission for a determination of whether the "interests of interstate or foreign commerce would be affected," a determination which obviously does not speak in terms of the interests of navigation or water commerce. Plainly, the provision does not require a license only where "the interests of interstate or foreign commerce on navigable waters would be affected." Although transportation on interstate waterways is interstate commerce, the phrase "affect the interests of commerce" on its face hardly supports any claim that Congress sought to regulate only such transportation. Rather, it strongly implies that Congress drew upon its full authority under the Commerce Clause, including but not limited to its power over water commerce."[H]alf a dozen enactments, other than the National Labor Relations Act, are sufficient to illustrate that, when [Congress] wants to bring aspects of commerce within the full sweep of its constitutional authority, it manifests its purpose by regulating not only 'commerce,' but also matters which 'affect', 'interrupt,' or 'promote' interstate commerce. . . . In so describing the range of its control, Congress is not indulging stylistic preferences."Polish National Alliance v. Labor Board, 322 U. S. 643, 322 U. S. 647.The scope of this language is not restricted by the earlier clause in § 23(b) limiting the filing requirements Page 381 U. S. 97 to projects on nonnavigable streams "over which Congress has jurisdiction under its authority to regulate commerce" that is, tributaries of river systems necessitating supervisory power to preserve or improve downstream navigability or water commerce generally. See United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690; Phillips v. Guy F. Atkinson Co., 313 U. S. 508. This language merely designates those who must file a declaration of intention -- all those who would locate a water power project on a nonnavigable stream within the jurisdiction of Congress are required to declare their intention so that the Commission may determine the necessity for a license. Congress then proceeds to invoke its full authority over commerce, without qualification, to define what projects on nonnavigable streams are required to be licensed. Respondent asserts that commerce must mean the same thing in both the filing and licensing requirements of § 23(b); because of the allusion to water commerce in the filing provision, the Commission's inquiry into the effect of the project on commerce must be limited to the source of Congress' power over the stream. Nothing in the structure or syntax of § 23(b) compels this conclusion. Indeed, in describing in distinct terms the standard for who must file and what must be licensed, [Footnote 9] the more compelling inference is that Congress intended Page 381 U. S. 98 the inquiry into the project's effect on commerce to include, but not be limited to, effect on downstream navigability. [Footnote 10]Turning to the purposes of the Federal Water Power Act, enacted in 1920, we find nothing which cases serious doubt upon our reading of § 23(b) or which indicates that the Commission was to restrict its considerations under § 23(b) to effect on navigability. There is much to indicate the contrary.The central purpose of the Federal Water Power Act was to provide for the comprehensive control over those uses of the Nation's water resources in which the Federal Government had a legitimate interest; these uses included navigation, irrigation, flood control, and, very prominently, hydroelectric power -- uses which, while unregulated, might well be contradictory, rather than harmonious. [Footnote 11] Prior legislation in 1890 and the Rivers and Harbors Page 381 U. S. 99 Act of 1899, [Footnote 12] prohibiting the erection of any obstruction to navigation, including those on nonnavigable feeders, United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, and requiring the consent of Congress and approval of the Secretary of War before constructing a bridge, dam, or dike along or in navigable waters, was thought inadequate, for it accommodated only the federal interest in navigation. As this Court has had occasion to note before, the 1920 Federal Water Power Act"was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, insofar as it was within the reach of the federal power to do so. . . ."First Iowa Hydro-Electric Coop. v. Federal Power Comm'n, 328 U. S. 152, 328 U. S. 180. The principal use to be developed and regulated in the Act, as its title indicates, was that of hydroelectric power to meet the needs of an expanding economy. [Footnote 13] Page 381 U. S. 100The provisions of the Act reflect these objectives. The preface states that, besides navigation and the creation of the Commission, the Act was "to provide for the . . . development of water power; the use of the public lands in relation thereto . . . , and for other purposes." 41 Stat. 1063. Section 10(a), as amended, requires as a condition for obtaining a license that the proposed project"be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water power development, and for other beneficial public uses. . . . [Footnote 14]"Other provisions regulate the operations, services, charges, and duration of hydroelectric plants, [Footnote 15] "provisions . . . not essential to or Page 381 U. S. 101 even concerned with navigation as such," but which "have an obvious relationship to the exercise of the commerce power." United States v. Appalachian Electric Power Co., 311 U. S. 377, 311 U. S. 424, 311 U. S. 427. In order to insure comprehensive control over the utilization of the Nation's waterways, "navigable stream" was broadly defined to include the interrupting falls, shallows, rapids and the waterways authorized by or recommended to Congress for improvements; [Footnote 16] and other recognized sources of federal authority were invoked, such as jurisdiction over public lands and national forests. [Footnote 17]If the comprehensive development of water power, "insofar as it was within the reach of the federal power to do so," First Iowa Hydro-Electric Coop. v. Federal Power Comm'n, 328 U.S. at 328 U. S. 180, was the central thrust of the Act, there is obviously little merit to the argument that § 23(b) requires a license when the interests of water commerce are affected, but dispenses with the license when other commerce interests are vitally involved. The purposes of the Act are more fully served if the Commission must, as it held in this case, consider the impact of the project on the full spectrum of commerce interests.IIIUnion's earnest position, however, is that the legislative history of the Act reveals a more limited purpose and requires a narrower construction of § 23(b). The core of the argument is that the constitutional basis for the Act generally, and for § 23(b) in particular, was the Page 381 U. S. 102 authority of Congress over navigation, that Congress invoked only this power, and no other, and that § 23(b) accordingly provides for no greater control over projects on nonnavigable streams than is necessary to protect downstream navigability. On these matters, it is said, both conservations and opponents of the Act agreed. Moreover, the argument continues, the limited reach of § 23(b) is confined by the repeated references to navigation and to congressional power over it in the course of committee hearings and reports on the 1935 amendments to the Act.We cannot distill as much as Union does from the long and intense legislative struggle to enact what was a decided innovation in federal policy. The Act unquestionably involved an invocation of the congressional power over navigation under the Commerce Clause, since it required a license to build any water power project on a navigable stream, broadly defined, [Footnote 18] regardless of any actual effect on navigation. There was, consequently, considerable debate about the scope and extent of the federal power over river navigation, about the definition of "navigable waters," and about the authority of Congress to impose controls and conditions having little relevance Page 381 U. S. 103 to the protection of navigation. [Footnote 19] Some thought the Commerce Clause did not extend to anything but the navigable mainstream itself, and then only for the purpose of preserving or improving water transportation. This broad objection to the Act found expression in remarks directed at § 23(b) and in assertions that the power over navigation was not sufficient to require the licensing of projects on nonnavigable streams, save perhaps where downstream navigability was substantially affected. [Footnote 20] Page 381 U. S. 104 Since the opponents of the Act mounted a major attack on the federal power over navigation, and this was a well recognized basis of Commerce Clause authority, the proponents defended on this ground. Navigation, and federal power over it, hence permeated the debates, and statements reflecting the understandings and disagreements Page 381 U. S. 105 over these issues understandably constitute a considerable part of the context in which the Act was enacted.But none of this history can fairly be said to meet, much less determine, the question presented here. That question is not whether Congress exercised its authority over navigation in the Federal Water Power Act, which it most assuredly did, but whether, in enacting § 23(b), it also invoked its full Commerce Clause authority over hydroelectric projects located on waters subject to federal jurisdiction. The fact that there were debates over the extent of federal power over navigation, or over navigable or nonnavigable streams, sheds little light on whether Congress did, or did not, intend to rely on other aspects of its power over commerce when it directed a Commission determination of the effects of a proposed project on the "interests of commerce." It is true that the debates on § 23(b), taking the course that they did, contain no express references to interstate commerce in electrical energy, perhaps because the authority to regulate the production of goods destined for interstate shipment was far less defined and understood at that time, see Hammer v. Dagenhart, 247 U. S. 251, decided in 1918, and perhaps because no one was inclined to inject other constitutional issues into the ongoing debates. [Footnote 21] But the Page 381 U. S. 106 Act which emerged from these debates, and § 23(b) in particular, was couched in terms which reached beyond the control of navigation and forms no support for the proposition that Congress intended to equate the "interests of commerce" with those of navigation. [Footnote 22]Indeed, this history indicates that Congress was differentiating between the two. The House version of § 23(b) granted permission to construct a dam on a nonnavigable stream, and provided for a license if the Commission found the improvement justified for the purpose of improving or developing the waterway "for the use or benefit of navigation in interstate or foreign commerce." [Footnote 23] The Senate Committee, along with the expansion of the definition of navigable waters, amended this to require the Commission to make an immediate investigation and to prohibit the construction without a license if the Commission found that "the interests of interstate or foreign commerce would be affected." [Footnote 24] Only if the Commission did not so find was the declarant granted permission to construct upon compliance with state laws. No one offered any explanation for the substitution of the inclusive term "affect the interests of interstate commerce." [Footnote 25] Page 381 U. S. 107 But conservationists and opponents seemed to agree that the Act embodied the full measure of Congress' authority under the Commerce Clause to regulate hydroelectric projects. [Footnote 26] And there is no evidence that the sponsors of the Act, who prevailed in securing its enactment in the broad terms they drafted, intended a construction of interstate or foreign commerce narrower than their constitutional counterparts. In the face of numerous objections to this exercise of federal authority, we find it of compelling significance that the Congress adopted comprehensive language and refrained from writing any limitation or reference to navigation into § 23(b).The materials concerning the 1935 amendments do not alter our conclusion. Here, the hearings and reports contained references to navigation and to the federal authority over navigable and nonnavigable streams. [Footnote 27] The House Report, for example, stated that"every person intending to construct a project which might affect navigation would be required to come to the Commission for a determination of the interests of the United States."H.R.Rep. No. 1318, 74th Cong., 1st Sess., 26. To the same effect, see S.Rep. No. 621, 74th Cong., 1st Sess., Page 381 U. S. 108 46-47. Such statements clearly refer to the filing requirement of § 23(b), which was the subject of the committee amendment. Only persons constructing projects on nonnavigable feeders of navigable waters need file a declaration of intention. The committee statements are thus quite accurate in this respect, but they do not illuminate the licensing provision of § 23(b), as distinct from its filing requirement, nor do they resolve the issue of which projects among those which might affect navigation are required to be licensed. They do not, explicitly or implicitly, exempt from licensing those projects having no effect on navigation. The reports do not equate the "interests of commerce" with those of water transportation.It is true that there are no express references in the reports or the debates to other aspects of the commerce power in connection with § 23(b), but the reports reflect the same broad intent as the earlier deliberations to secure federal control over all water power projects involving the utilization of the Nation's river systems."The act would be greatly strengthened by enabling the Commission to preserve control over all projects with which the Federal Government has any valid concern."S.Rep. No. 621, 74th Cong., 1st Sess., 47. See also H.R.Rep. No. 1318, 74th Cong., 1st Sess., 26. And on the floor of Congress, objections to federal control over projects on nonnavigable streams similar to those voiced in 1920 were again rejected as inconsistent with effective water power regulation. 79 Cong.Rec. 10568. Moreover, there was promptly eliminated an amendment to § 23 which would have required a license only when the "interests of interstate or foreign commerce would be directly affected or burdened by such proposed construction." [Footnote 28] Page 381 U. S. 109Nor can we ignore the actual effect of the filing requirement added in 1935. The applicable provision prior to this amendment, § 9 of the Rivers and Harbors Act, 30 Stat. 1151, forbidding obstructions to navigation, was adequate to insure that projects with a substantial effect on downstream navigability would be brought before the Commission. Persons intending to construct a project which would likely have no such effect, such as some pure pumped storage installations, could decline to file a declaration of intention with impunity. Thus, the 1935 amendment made a difference principally in regard to projects which predictably have little, if any, effect on navigation, but a significant effect on interstate commerce. Respondent would have us assume this difference was not intended, although both the Committees stated that the amendment would enable "the Commission to preserve control over all projects with which the Federal Government has any valid concern." S.Rep.No. 621, 74th Cong., 1st Sess., 47; H.R.Rep. No. 1318, 74th Cong., 1st Sess., 26. In light of the necessary purport of this amendment and the breadth of the federal interest in hydroelectric projects expressed in the 1920 Act, the preoccupation of the Commission and the committees with navigation, while not without significance, does not overcome the clear import of the language and the purposes of the Act.The respondent asserts that an anomalous consequence flows from the Commission's construction of the Act and its view that steam plants generating large amounts of energy for interstate transmission are not within the scope of § 23(b), although located along a stream over which Congress has jurisdiction. Since the Commission's jurisdiction here rests solely on the interstate transmission of energy, there can be no basis for distinguishing Page 381 U. S. 110 between a steam plant and a hydroelectric facility both generating energy for interstate use. The Court of Appeals, after noting that the generation of electric energy is a local or intrastate activity, concluded from this argument that"[t]he Commission's jurisdiction . . . must logically rest upon its delegated congressional jurisdiction over the interests of commerce on navigable waters."326 F.2d at 551. On this reasoning, either the Act should, but does not, require a license for a steam plant when situated on the navigable mainstream itself, or should not, but does, require a license for a hydroelectric plant, pumped storage or otherwise, situated on the mainstream but which has no demonstrable effect, or a beneficial effect, on navigability. The answer to this conundrum is that, unlike Part II of Title II of the Public Utility Act of 1935, under which the Commission regulates various aspects of the sale and transmission of energy in interstate commerce, Part I, the original Federal Water Power Act, is concerned with the utilization of water resources, and particularly the power potential in water. In relation to this central concern of the Act, [Footnote 29] the distinction between a hydroelectric project and a steam plant is obvious, and meaningful, although both produce energy for interstate transmission. [Footnote 30]Reversed

U.S. Supreme CourtFPC v. Union Electric Co., 381 U.S. 90 (1965)Federal Power Commission v. Union Electric Co.No. 123Argued March 2, 1965Decided May 3, 1965381 U.S. 90SyllabusRespondent filed a declaration of intention with the Federal Power Commission (FPC) pursuant to § 23(b) of the Federal Power Act to construct a pumped storage plant on a nonnavigable tributary of a navigable stream. A pumped storage plant uses power during periods of non-peak demands to pump water to an upper pool to be used to generate peak period energy by water falling into a lower pool. The FPC found that the nonnavigable tributary is a stream over which Congress has jurisdiction, as it is a headwater of a navigable river system. The FPC held that the project would require a license under § 23(b) because it would use water power for the interstate transmission of electricity and because it would affect downstream navigability. The Court of Appeals reversed, finding that the only relevant "commerce" under § 23(b) is that on the downstream navigable waterway, and that the project would have no significant impact on water commerce.Held:1. The commerce power of Congress clearly encompasses the interstate transmission of electric energy, and the project here is within the purview of that power, without regard to federal control of tributary streams and navigation. P. 381 U. S. 94.2. The language of the licensing requirement of § 23(b) invokes the full congressional authority over commerce, and not merely the regulation of navigation or water commerce. Pp. 381 U.S. 95-98.3. The purposes of the predecessor statute, the Federal Water Power Act, which included the comprehensive development of water power and hydroelectric energy, are more fully served by considering the impact of the project on the full range of commerce interests. Pp. 381 U. S. 98-109.4. Since the original Federal Water Power Act was concerned with the utilization of water resources, and particularly the power potential in water, there is no anomaly in the FPC's position that steam plants generating energy for interstate transmission are not within the scope of § 23(b), although located on a stream over Page 381 U. S. 91 which Congress has jurisdiction, while similar hydroelectric facilities are covered by § 23(b). Pp. 381 U. S. 109-110.326 F.2d 535 reversed.

1980_80-5060

REHNQUIST, J., filed a dissenting opinion, post, p. 450 U. S. 307.JUSTICE STEWART delivered the opinion of the Court.In this case, a Kentucky criminal trial judge refused a defendant's request to give the following jury instruction: "The [defendant] is not compelled to testify, and the fact that he does not cannot be used as an inference of guilt, and should not prejudice him in any way." The Supreme Court of Kentucky found no error. [Footnote 1] We granted certiorari to consider the petitioner's contention that a defendant, upon request, Page 450 U. S. 290 has a right to such an instruction under the Fifth and Fourteenth Amendments of the Constitution. 449 U.S. 819. [Footnote 2]IAIn the early morning of December 22, 1978, Officer Deborah Ellison of the Hopkinsville, Kentucky, Police Department, on routine patrol in downtown Hopkinsville, noticed something in the alley between Young's Hardware Store and Edna's Furniture Store. She backed her car up, flashed her spotlight down the alley, and saw two men stooped alongside one of the buildings. The men ran off. Officer Ellison drove her squad car down the alley and found a hole in the side of Young's Hardware Store. She radioed Officer Leroy Davis, whom she knew to be in the area, informing him that two men had fled from the alley.Soon after receiving Ellison's call, Officer Davis saw two men run across a street near where he had been patrolling. The two ran in opposite directions, and Davis proceeded after one of them. Following a chase, during which he twice lost sight of the man he was pursuing, Davis was finally able to stop him. The man was later identified as the petitioner, Lonnie Joe Carter. During the course of the chase, Davis Page 450 U. S. 291 saw the petitioner drop two objects: a gym bag and a radio tuned to a police band. When apprehended, the petitioner was wearing gloves but no jacket. While Davis was pursuing the petitioner, Officer Ellison inspected the alley near the hole in the building wall. She found two jackets, along with some merchandise that had apparently been removed from the hardware store.After arresting the petitioner, Davis brought him to Officer Ellison to see if she could identify him as one of the men she had seen in the alley. Ellison noted that he was of similar height and weight to one of the men in the alley, and that he wore similar clothing, but because it had been too dark to get a good view of the men's faces, she could not make a more positive identification. The petitioner was then taken to police headquarters.BThe petitioner was subsequently indicted for third-degree burglary of Young's Hardware Store. The indictment also charged him with being a persistent felony offender, in violation of Ky.Rev.Stat. § 532.080 (Supp. 1980), on the basis of previous felony convictions. At the trial, the voir dire examination of prospective jurors was conducted solely by the judge. [Footnote 3] The prosecutor's opening statement recounted the Page 450 U. S. 292 evidence expected to be introduced against the petitioner. The opening statement of defense counsel began as follows:"Let me tell you a little bit about how this system works. If you listened to Mr. Ruff [the prosecutor] you are probably ready to put Lonnie Joe in the penitentiary. He read you a bill, a true bill that was issued by the Grand Jury. Now, the Grand Jury is a group of people that meet back here in a room and the defendant is not able or not allowed to present any of his testimony before this group of people. The only thing that the Grand Jury hears is the prosecution's proof, and I would say approximately what Mr. Ruff has said to you. I suppose that most of you would issue a true bill if Mr. Ruff told you what he has just told you and you didn't have a chance to hear what the defendant had to say for himself.""Now, that is just completely contrary to our system of law. A man, as the Judge has already told you, . . . is innocent until . . . proved guilty. . . ."The prosecution rested after calling Officers Ellison, Davis, another officer, and the owner of Young's Hardware Store. The trial judge then held a conference, outside of the hearing of the jury, to determine whether the petitioner would testify, and whether the prosecutor would be permitted to impeach the petitioner with his prior felony convictions. Defense counsel stated:"Judge, I think possibly the only reservation Mr. Carter might have about testifying would be his impeachment by the use of these previous offenses that he is aware of and has told me about. I would like to explain to him in front of you what this all means. "Page 450 U. S. 293Counsel then explained to the petitioner that, if he testified, the Commonwealth could "use the fact that you have several offenses on your record . . . [to] impeach your . . . propensity to tell the truth. . . ." Counsel added that, in his experience, this was "a heavy thing; it is very serious, and I think juries take it very seriously. . . ." The judge indicated that, under Kentucky law, he had "discretionary control" over the use of prior felony convictions for impeachment, and cautioned the prosecutor that he might be inviting a reversal if he introduced more than three prior felony convictions, strongly suggesting that the prosecutor rely on the most recent convictions only. The judge then addressed the petitioner:"THE COURT: . . . you can sit there and say nothing, and it cannot be mentioned if you don't testify, but if you d,o these other convictions can be shown to indicate to the jury that maybe you are not telling the truth.""* * * *" "THE COURT: . . . [Y]ou talk to Mr. Rogers [defense counsel] and then tell us what you want to do.""* * * *" "THE COURT: Now, Lonnie, you have come back after a private conference with your lawyer, Mr. Rogers[,] and you have told me you have decided not to take the stand?""LONNIE JOE CARTER: Yes, Sir. [Footnote 4]"Upon returning to open court, the petitioner's counsel advised the court that there would be no testimony introduced Page 450 U. S. 294 on behalf of the defense. He then requested that the following instruction be given to the jury:"The [defendant] is not compelled to testify, and the fact that he does not cannot be used as an inference of guilt, and should not prejudice him in any way."The trial court refused the request.The prosecutor began his summation by stating that he intended to review the evidence "that we were privileged to hear," and cautioned the jury to"[c]onsider only what you have heard up here as evidence in this case, and not something that you might speculate happened or could have happened. . . ."After mentioning admissions that the petitioner had allegedly made at police headquarters, [Footnote 5] the prosecutor argued:"Now that is not controverted whatsoever. It is not controverted that Lonnie Joe is the man that Miss Ellison saw here. It is not controverted that Lonnie Joe is the man that Davis caught up here (again pointing to blackboard sketch). It is not controverted that Lonnie Joe had that bag (pointing to bag on reporter's desk) and that radio (pointing to radio) with him. It is not controverted that both of those jackets belong to Lonnie Joe. At least, that is what he told the police department. But, at any rate, that is all we have to go on. . . ."The prosecutor continued that, if there was a reasonable explanation why the petitioner ran when he saw the police, it was "not in the record." [Footnote 6] Page 450 U. S. 295The jury found the petitioner guilty, recommending a sentence of two years. The recidivist phase of the trial followed. The prosecutor presented evidence of the previous felony convictions that had been listed in the indictment. The defense presented no evidence, and the jury found the petitioner guilty as a persistent offender, sentencing him to the maximum term of 20 years in prison.Upon appeal, the Kentucky Supreme Court rejected the argument that the Fifth and Fourteenth Amendments to the United States Constitution require that a criminal trial judge give the jury an instruction such as was requested here. In concluding that the trial judge did not commit error by refusing to give the requested instruction, the court pointed to Ky.Rev.Stat. § 421.225 (Supp. 1980), which provides:"In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him."Holding that the jury instruction requested by counsel would have required the trial judge to "comment upon" the defendant's failure to testify, the court cited its previous decision in Green v. Commonwealth, 488 S.W.2d 339, as controllingIIAThe constitutional question presented by this case is one the Court has specifically anticipated and reserved, first in Griffin v. California, 380 U. S. 609, 380 U. S. 615, n. 6, and more recently in Lakeside v. Oregon, 435 U. S. 333, 435 U. S. 337. But, as a question of federal statutory law, it was resolved by a unanimous Court over 40 years ago in Bruno v. United States, 308 U. S. 287. The petitioner in Bruno was a defendant in a federal criminal Page 450 U. S. 296 trial who had requested a jury instruction similar to the one requested by the petitioner in this case. [Footnote 7] The Court, addressing the question whether Bruno "had the indefeasible right" that his proffered instruction be given to the jury, decided that a federal statute, [Footnote 8] which prohibits the creation of any presumption from a defendant's failure to testify, required that the "substance of the denied request should have been granted. . . ."Id. at 308 U. S. 294. [Footnote 9] Page 450 U. S. 297The Griffin case came here shortly after the Court had held that the Fifth Amendment command that no person "shall be compelled in any criminal case to be a witness against himself" is applicable against the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1. [Footnote 10] In Griffin, the Court considered the question whether it is a violation of the Fifth and Fourteenth Amendments to invite a jury in a state criminal trial to draw an unfavorable inference from a defendant's failure to testify. The trial judge had there instructed the jury that "a defendant has a constitutional right not to testify," and that the defendant's exercise of that right "does not create a presumption of guilt nor, by itself, warrant an inference of guilt" nor "relieve the prosecution of any of its burden of proof." But the instruction additionally permitted the jury to"take that failure into consideration as tending to indicate the truth of [the State's] evidence and as indicating that, among the inferences that may be reasonably drawn therefrom, those unfavorable to the defendant are the more probable."380 U.S. at 380 U. S. 610.This Court set aside Griffin's conviction because"the Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt."Id. at 380 U. S. 615. [Footnote 11] It condemned adverse comment on a defendant's failure to testify as reminiscent of the "inquisitorial system of criminal justice,'" Page 450 U. S. 298 id. at 380 U. S. 614, quoting Murphy v. Waterfront Comm'n, 378 U. S. 52, 378 U. S. 55, and concluded that such comment effected a court-imposed penalty upon the defendant that was unacceptable because "[i]t cuts down on the privilege by making its assertion costly." 380 U.S. at 380 U. S. 614. [Footnote 12]The Court returned to a consideration of the Fifth Amendment and jury instructions in Lakeside v. Oregon, 435 U. S. 333, where the question was whether the giving of a "no inference" instruction over defense objection violates the Constitution. Despite trial counsel's complaint that his strategy was to avoid any mention of his client's failure to testify, a no inference instruction [Footnote 13] was given by the trial judge. The petitioner contended that, when a trial judge in any way draws the jury's attention to a defendant's failure to testify, unless the defendant acquiesces, the court invades the defendant's privilege against compulsory self-incrimination. This argument was rejected.The Lakeside Court reasoned that the Fifth and Fourteenth Amendments bar only adverse comment on a defendant's failure to testify, and that"a judge's instruction that the jury must draw no adverse inferences of any kind from the defendant's exercise of his privilege not to testify is 'comment' of an entirely different order."Id. at 435 U. S. 339. The purpose of such an instruction, the Court stated, "is to remove from the jury's deliberations any influence of unspoken adverse inferences," and "cannot provide the pressure on a defendant found impermissible in Griffin." Ibid. Page 450 U. S. 299The Court observed in Lakeside that the petitioner's argument there rested on "two very doubtful assumptions:""First, that the jurors have not noticed that the defendant did not testify, and will not, therefore, draw adverse inferences on their own. Second, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all. Federal constitutional law cannot rest on speculative assumptions so dubious as these."Id. at 435 U. S. 340 (footnote omitted).Finally, the Court stressed that "[t]he very purpose" of a jury instruction is to direct the jurors' attention to important legal concepts "that must not be misunderstood, such as reasonable doubt and burden of proof," and emphasized that instruction "in the meaning of the privilege against compulsory self-incrimination is no different." Ibid.BThe inclusion of the privilege against compulsory self-incrimination [Footnote 14] in the Fifth Amendment"reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; . . . 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 . . . , in its contest with the individual, to shoulder the entire load,' . . . ; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes Page 450 U. S. 300 'a shelter to the guilty,' is often 'a protection to the innocent.'"Murphy v. Waterfront Comm'n, supra, at 378 U. S. 55. [Footnote 15] The principles enunciated in our cases construing this privilege, against both statutory and constitutional backdrops, lead unmistakably to the conclusion that the Fifth Amendment requires that a criminal trial judge must give a "no adverse inference" jury instruction when requested by a defendant to do so.In Bruno, the Court declared that the failure to instruct as requested was not a mere "technical erro[r] . . . which do[es] not affect . . . substantial rights. . . ." It stated that the "right of an accused to insist on" the privilege to remain silent is "[o]f a very different order of importance . . ." from the "mere etiquette of trials and . . . the formalities and minutiae of procedure." 308 U.S. at 308 U. S. 293-294. Thus, while the Bruno Court relied on the authority of a federal statute, it is plain that its opinion was influenced by the absolute constitutional guarantee against compulsory self-incrimination. [Footnote 16] Page 450 U. S. 301The Griffin case stands for the proposition that a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify. The penalty was exacted in Griffin by adverse comment on the defendant's silence; the penalty may be just as severe when there is no adverse comment, but when the jury is left to roam at large with only its untutored instincts to guide it, to draw from the defendant's silence broad inferences of guilt. Even without adverse comment, the members of a jury, unless instructed otherwise, may well draw adverse inferences from a defendant's silence. [Footnote 17]The significance of a cautionary instruction was forcefully acknowledged in Lakeside, where the Court found no constitutional error even when a no-inference instruction was given over a defendant's objection. The salutary purpose of the instruction, "to remove from the jury's deliberations any influence of unspoken adverse inferences," was deemed so important that it there outweighed the defendant's own preferred tactics. [Footnote 18] Page 450 U. S. 302We have repeatedly recognized that "instructing a jury in the basic constitutional principles that govern the administration of criminal justice," Lakeside, 435 U.S. at 435 U. S. 342, is often necessary. [Footnote 19] Jurors are not experts in legal principles; to function effectively and justly, they must be accurately instructed in the law. Such instructions are perhaps nowhere more important than in the context of the Fifth Amendment privilege against compulsory self-incrimination, since"[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 . . . guilty of crime. . . . "Ullman v. United States, 350 U. S. 422, 350 U. S. 426. And, as the Court has stated,"we have not yet attained that certitude about the human mind which would justify us in . . . a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court. . . ."Bruno, 308 U.S. at 308 U. S. 294. [Footnote 20] Page 450 U. S. 303A trial judge has a powerful tool at his disposal to protect the constitutional privilege -- the jury instruction -- and he has an affirmative constitutional obligation to use that tool when a defendant seeks its employment. No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum. [Footnote 21]CThe only state interest advanced by Kentucky in refusing a request for such a jury instruction is protection of the defendant:"the requested 'no inference' instruction . . . would have been a direct 'comment' by the court, and would have emphasized the fact that the accused had not testified in his own behalf."Green v. Commonwealth, 488 S.W.2d at 341. This purported justification was specifically rejected in the Lakeside case, where the Court noted that "[i]t would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect." 435 U.S. at 435 U. S. 339.Kentucky also argues that, in the circumstances of this case, the jurors knew they could not make adverse inferences from the petitioner's election to remain silent because they were instructed to determine guilt "from the evidence alone," and because failure to testify is not evidence. The Commonwealth's argument is unpersuasive. Jurors are not lawyers; they do not know the technical meaning of "evidence." Page 450 U. S. 304 They can be expected to notice a defendant's failure to testify, and, without limiting instruction, to speculate about incriminating inferences from a defendant's silence.The other trial instructions and arguments of counsel that the petitioner's jurors heard at the trial of this case were no substitute for the explicit instruction that the petitioner's lawyer requested. Although the jury was instructed that "[t]he law presumes a defendant to be innocent," it may be doubted that this instruction contributed in a significant way to the jurors' proper understanding of the petitioner's failure to testify. Without question, the Fifth Amendment privilege and the presumption of innocence are closely aligned. But these principles serve different functions, and we cannot say that the jury would not have derived "significant additional guidance," Taylor v. Kentucky, 436 U. S. 478, 436 U. S. 484, from the instruction requested. See United States v. Bain, 596 F.2d 120 (CA5); United States v. English, 409 F.2d 200, 201 (CA3). And most certainly, defense counsel's own argument that the petitioner "doesn't have to take the stand . . . [and] doesn't have to do anything" cannot have had the purging effect that an instruction from the judge would have had. "[A]rguments of counsel cannot substitute for instructions by the court." Taylor v. Kentucky, supra at 436 U. S. 489. [Footnote 22]Finally, Kentucky argues that, because the evidence of petitioner's guilt was "overwhelming, and could not be explained," any constitutional error committed by the state courts was harmless. Chapman v. California, 386 U. S. 18. While it is arguable that a refusal to give an instruction similar to the one that was requested here can never be harmless, cf. Bruno, supra at 308 U. S. 293, we decline to reach the issue, because it was not presented to or considered by the Supreme Court of Kentucky. See Sandstrom v. Montana, 442 U. S. 510, 442 U. S. 527. Page 450 U. S. 305IIIThe freedom of a defendant in a criminal trial to remain silent "unless he chooses to speak in the unfettered exercise of his own will" is guaranteed by the Fifth Amendment and made applicable to state criminal proceedings through the Fourteenth. Malloy v. Hogan, 378 U.S. at 378 U. S. 8. And the Constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege. Griffin v. California, 380 U. S. 609. Just as adverse comment on a defendant's silence "cuts down on the privilege by making its assertion costly," id. at 380 U. S. 614, the failure to limit the jurors' speculation on the meaning of that silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full and free exercise of the privilege. Accordingly, we hold that a state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify.For the reasons stated, the judgment is reversed and the case is remanded to the Supreme Court of Kentucky for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtCarter v. Kentucky, 450 U.S. 288 (1981)Carter v. KentuckyNo. 80-5060Argued January 14, 1981Decided March 9, 1981450 U.S. 288SyllabusAt petitioner's criminal trial in a Kentucky court in which no testimony was introduced on behalf of the defense, the trial judge refused petitioner's requested jury instruction that"[t]he [defendant] is not compelled to testify, and the fact that he does not cannot be used as an inference of guilt, and should not prejudice him in any way."On appeal from petitioner's conviction, the Kentucky Supreme Court rejected his argument that the Fifth and Fourteenth Amendments require the trial judge to give the requested instruction, holding that such instruction would have required the judge to "comment upon" the petitioner's failure to testify in violation of a Kentucky statute prohibiting such a comment.Held: Petitioner had a right to the requested instruction under the privilege against compulsory self-incrimination of the Fifth Amendment as made applicable to the States by the Fourteenth Amendment, a state trial judge having a constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify. Pp. 450 U. S. 295-305.(a) The penalty imposed upon a defendant for the exercise of his constitutional privilege not to testify is severe when there is an adverse comment on his silence, Griffin v. California, 380 U. S. 609, but even without adverse comment, a jury, unless instructed otherwise, may well draw adverse inferences from a defendant's silence. Instructions to the jury on the law are perhaps nowhere more important than in the context of the Fifth Amendment privilege against compulsory self-incrimination. While no judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum. Pp. 450 U. S. 299-303.(b) Kentucky's interest in protecting the defendant is insufficient justification for refusing the requested instruction, since "[i]t would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect." Lakeside v. Oregon, 435 U. S. 333, 435 U. S. 339. The fact that the jury was instructed to determine petitioner's guilt "from the evidence alone" does not excuse Page 450 U. S. 289 the refusal to give the requested instruction, since a jury, not knowing the technical meaning of "evidence," can be expected to notice defendant's failure to testify, and, without limiting instructions, to speculate about incriminating inferences from a defendant's silence. Nor was an instruction that the law presumes defendant to be innocent a substitute for the requested instruction, since it is doubtful that it contributed significantly to the jury's proper understanding of petitioner's failure to testify. And defense counsel's own argument that petitioner did not have to take the stand could not have had the purging effect that the requested instruction would have had. Pp. 450 U. S. 303-304.598 S.W.2d 763, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 450 U. S. 305. STEVENS, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 450 U. S. 307. REHNQUIST, J., filed a dissenting opinion, post, p. 450 U. S. 307.

1976_76-777

MR. JUSTICE STEWART delivered the opinion of the Court.The question in this litigation concerns the constitutional validity of a legislative reapportionment plan devised by a three-judge Federal District Court for Mississippi's Senate and House of Representatives. In Nos. 76-777 and 76-935, the Page 431 U. S. 409 appellants are the Mississippi voters who originally brought this class action in the District Court. They challenge the court's entire Senate plan, and aspects of the House plan, as failing to meet the basic one-person, one-vote requirements of the Equal Protection Clause of the Fourteenth Amendment, and particularly the constitutional and equitable requirements of a court-ordered reapportionment plan. [Footnote 1] In No. 76-934, the appellant is the Government, an intervenor in the District Court. [Footnote 2] These appellants join in asserting that the District Court's plan works an impermissible dilution of Negro voting strength, and they challenge as well the District Court's decree for its failure to order special elections in all legislative districts where new or significantly stronger Negro voting majorities were created by the District Court's plan. In No. 76-933, the appellants are the state officers who were named as defendants in the District Court. These appellants assert that the District Court should have accorded greater deference to Mississippi's historic policy of respecting county boundaries. and thus should have established multimember legislative districts, and they further assert that the court erred in ordering any special elections at all.We do not reach all the complicated issues raised by the various appellants, because we have concluded that both the Senate and the House reapportionments ordered by the District Court fail to meet the most elemental requirement of the Equal Protection Clause in this area -- that legislative districts Page 431 U. S. 410 be "as nearly of equal population as is practicable." Reynolds v. Sims, 377 U. S. 533, 377 U.S. 577; Chapman v. Meier, 420 U. S. 1.IThe effort to reapportion the Mississippi Legislature in accordance with constitutional requirements has occupied the attention of the federal courts for 12 years. This painfully protracted process of litigation began in the wake of Reynolds v. Sims, supra, when the appellants in No. 76-777 challenged in the District Court for the Southern District of Mississippi, the extreme population variances of the legislative apportionment that had been enacted by the state legislature in 1962. The District Court invalidated that plan. Connor v. Johnson, 256 F. Supp. 962. [Footnote 3] After waiting for an ultimately unsuccessful attempt by the legislature to enact a constitutional reapportionment, the District Court then promulgated its own plan for the 1967 quadrennial elections, relying rather extensively on multimember districting in both legislative houses to achieve substantial population equality. [Footnote 4] Connor v. Johnson, 265 F. Supp. 492.In 1971, the state legislature enacted another apportionment; that legislation was held unconstitutional because the District Court could find no justification for the continuing substantial population variances among the various legislative districts. Connor v. Johnson, 330 F. Supp. 506. The court consequently formulated its own plan to govern the 1971 elections, continuing to rely extensively on multimember districts, [Footnote 5] and failing altogether to formulate a final plan with Page 431 U. S. 411 respect to the State's three largest counties -- Hinds, Harrison, and Jackson. Those counties instead were given interim multimember representation. In an interlocutory appeal from that order, this Court pointed out that single member districts are preferable to large multimember districts in court-ordered reapportionment plans, and accordingly stayed the judgment of the District Court and instructed it, "absent insurmountable difficulties, to devise and put into effect a single member district plan for Hinds County." [Footnote 6] Connor v. Johnson, 402 U. S. 690, 402 U. S. 692. The District Court found itself confronted by insurmountable difficulties, however, and did not divide Hinds County into single member districts before the 1971 election. Connor v. Johnson, 330 F. Supp. 521.On direct appeal, after the 1971 elections had taken place pursuant to the District Court's plan, this Court declined to consider the prospective validity of the 1971 plan in the continued absence of a final plan redistricting Hinds, Harrison, and Jackson Counties. Connor v. Williams, 404 U. S. 549. Relying on the District Court's stated intention to appoint a Special Master in January, 1972, to consider the subdivision of those counties into single member districts, we vacated the judgment and remanded with directions to the District Court that "[s]uch proceedings should go forward and be promptly concluded." Id. at 404 U. S. 551.No Special Master was appointed. In anticipation of the 1975 elections, however, the Mississippi Legislature, in April, 1973, enacted a new apportionment. A hearing was not held on the plaintiffs' prompt objections to that legislation until February, 1975. Before the District Court reached a decision, Page 431 U. S. 412 however, the Mississippi Legislature enacted yet another apportionment almost identical to the 1971 court-ordered plan, but permanently adopting multimember districts for Hinds, Harrison, and Jackson Counties. The District Court ordered the filing of a new complaint addressing the 1975 legislation, and concluded that it was constitutional. Connor v. Waller, 396 F. Supp. 1308. [Footnote 7] We reversed, holding that the legislative apportionment could not be effective as law until it had been submitted and had received clearance under § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c, and that the District Court had accordingly erred in considering its constitutional validity. Connor v. Waller, 421 U. S. 656.In compliance with § 5 of the Voting Rights Act, Mississippi then submitted the 1975 legislation to the Attorney General of the United States. When he objected to the legislation, [Footnote 8] the District Court proceeded to formulate another temporary reapportionment plan using multimember districts for the conduct of the 1975 elections. When the District Court delayed consideration of a permanent plan for the 1979 elections, this Court allowed the filing of a petition for a writ of mandamus to compel the District Court to enter a final judgment embodying a permanent reapportionment plan for Page 431 U. S. 413 the Mississippi Legislature. Connor v. Coleman, 425 U. S. 675. [Footnote 9] The District Court thereupon held hearings and entered a judgment adopting a final plan. See 419 F. Supp. 1072, 419 F. Supp. 1089, 422 F. Supp. 1014. We noted probable jurisdiction of these appeals challenging that judgment. 429 U.S. 1010 and 1060.IIIn approaching the task of devising a reapportionment plan for the 122-member House and 52-member Senate, the District Court announced certain guidelines to structure its analysis, drawn from previous cases in this court and other courts and from Mississippi policy. Population variances were to be as "near de minimis as possible"; districts were to be reasonably contiguous and compact; Negro voting strength would not be minimized or canceled; and every effort would be made to maintain the integrity of county lines. [Footnote 10] The plaintiffs do not really challenge the criteria enunciated by the District Court, but rather argue that the court failed to abide by its criteria in putting together the reapportionment plans. The defendants, Page 431 U. S. 414 as cross-appellants, argue by contrast that the District Court went too far, and that the Mississippi policy of respecting county lines required the court to continue the utilization of multimember districts.This litigation is a classic example of the proposition that"'the federal courts are often going to be faced with hard remedial problems' in minimizing friction between their remedies and legitimate state policies."Taylor v. McKeithen, 407 U. S. 191, 407 U. S. 194, quoting Sixty-seventh Minnesota State Senate v. Beens, 406 U. S. 187, 406 U. S. 204 (dissenting opinion). The essential question here is whether the District Court properly exercised its equitable discretion in reconciling the requirements of the Constitution with the goals of state political policy.Although every state reapportionment plan is fraught with its own peculiar factual difficulties, it can hardly be said that this Court has given no guidance of general applicability to a court confronted with the need to devise a legislative reapportionment plan when the state legislature has failed. We have made clear that, in two important respects, a court will be held to stricter standards in accomplishing its task than will a state legislature:"[U]nless there are persuasive justifications, a court-ordered reapportionment plan of a state legislature must avoid use of multimember districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimis variation."Chapman v. Meier, 420 U.S. at 420 U. S. 26-27.These high standards reflect the unusual position of federal courts as draftsmen of reapportionment plans. We have repeatedly emphasized that "legislative reapportionment is primarily a matter for legislative consideration and determination," Reynolds v. Sims, 377 U.S. at 377 U.S. 586, [Footnote 11] for a state legislature is the institution that is by far the best situated to Page 431 U. S. 415 identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality. The federal courts, by contrast, possess no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people's name. In the wake of a legislature's failure constitutionally to reconcile these conflicting state and federal goals, however, a federal court is left with the unwelcome obligation of performing in the legislature's stead, while lacking the political authoritativeness that the legislature can bring to the task. In such circumstances, the court's task is inevitably an exposed and sensitive one that must be accomplished circumspectly, and in a manner "free from any taint of arbitrariness or discrimination." Roman v. Sincock, 377 U. S. 695, 377 U. S. 710.ABecause the practice of multimember districting can contribute to voter confusion, make legislative representatives more remote from their constituents, and tend to submerge electoral minorities and overrepresent electoral majorities, this Court has concluded that single member districts are to be preferred in court-ordered legislative reapportionment plans unless the court can articulate a "singular combination of unique factors" that justifies a different result. Mahan v. Howell, 410 U. S. 315, 410 U. S. 333; Chapman v. Meier, supra at 420 U. S. 21; East Carroll Parish School Board v. Marshall, 424 U. S. 636, 424 U. S. 639. In its final plan, and over the defendants' objection, the District Court in the present case accordingly abandoned -- albeit reluctantly -- its previous adherence to multimember districting. The defendants' unallayed reliance on Mississippi's historic policy against fragmenting counties is insufficient to overcome the strong preference for single member districting that this Court originally announced in this very litigation. Connor v. Johnson, 402 U.S. at 402 U. S. 692; Connor v. Williams, 404 U.S. at 404 U. S. 551. Page 431 U. S. 416BThe Equal Protection Clause requires that legislative districts be of nearly equal population, so that each person's vote may be given equal weight in the election of representatives. Reynolds v. Sims, supra. It was recognition of that fundamental tenet that motivated judicial involvement in the first place in what had been called the "political thicket" of legislative apportionment. Baker v. Carr, 369 U. S. 186. The District Court's plan nevertheless departs from that norm in deference to Mississippi's historic respect for the integrity of county boundaries in conjunction with legislative districts. The result, as the District Court itself recognized, was "greater variances in population percentages in some instances than ordinarily would have been preferred." 419 F. Supp. at 1076.Given the 1970 Mississippi population of 2,216,912 to be apportioned among 52 Senate districts, [Footnote 12] the population norm for a Senate seat if absolute population equality were to be achieved would be 42,633. As computed by the District Court, [Footnote 13] the Senate plan contains a maximum deviation from Page 431 U. S. 417 population equality of 16.5, [Footnote 14] with the largest variances occurring in District 6 (8.2% above the norm) and in District 38 (8.3% below the norm). Fourteen of the court's 52 Senate districts have variances from population equality of over 5, plus or minus, and four of those have variances of 8% or more, plus or minus. In the House plan, with 122 seats, [Footnote 15] and a population norm of 18,171, there is a maximum deviation of 19.3%, with the largest variances occurring in District 5 (9.4% over the norm) and District 47 (9.9% below the norm). [Footnote 16] Forty-eight districts vary more than 5% either way, and 11 of those districts vary more than 8% either way.Such substantial deviations from population equality simply cannot be tolerated in a court-ordered plan, in the absence of some compelling justification:"With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features.""* * * *" ". . . [A] court-ordered reapportionment plan of a state legislature . . . must ordinarily achieve the goal of population equality with little more than de minimis variation. Where important and significant state considerations rationally mandate departure from these standards, it is the reapportioning court's responsibility to articulate precisely Page 431 U. S. 418 why a plan of single member districts with minimal population variance cannot be adopted."Chapman v. Meier, 420 U.S. at 420 U. S. 227 (footnote omitted).The maximum population deviations of 16.5% in the Senate districts and 19.3% in the House districts can hardly be characterized as de minimis; they substantially exceed the "under-10" deviations the Court has previously considered to be of prima facie constitutional validity only in the context of legislatively enacted apportionments. [Footnote 17] See Gaffney v. Cummins, 412 U. S. 735 (7.83% maximum deviation from the population norm); White v. Regester, 412 U. S. 755 (9.9% maximum deviation from the population norm). Hence, even a legislatively crafted apportionment with deviations of this magnitude could be justified only if it were "based on legitimate considerations incident to the effectuation of a rational state policy." Reynolds v. Sims, 377 U.S. at 377 U.S. 579, quoted in Mahan v. Howell, 410 U.S. at 410 U. S. 325.As justification for both the Senate and House plans, the District Court pointed to a fairly consistent state policy of maintaining the borders of its 82 counties when allotting seats in the legislature, and to the fact that this policy is rationalized in part by the lack of legislative powers entrusted to the counties, whose legislative needs must instead be met by reliance on private bills introduced by members of the state legislature. [Footnote 18] But the District Court itself recognized at an Page 431 U. S. 419 earlier stage in this litigation that the policy against breaking county boundary lines is virtually impossible of accomplishment in a State where population is unevenly distributed among 82 counties, from which 52 Senators and 122 House members are to be elected. Only 11 of 82 counties have enough people to elect a Senator, and only 44 counties have enough people to elect a Representative. Connor v. Johnson, 330 F. Supp. at 509.The policy of maintaining the inviolability of county lines in such circumstances, if strictly adhered to, must inevitably collide with the basic equal protection standard of one person, one vote. Indeed, Mississippi's insistent adherence to that policy resulted in the invalidation of three successive legislative apportionments as constitutionally impermissible. See Connor v. Johnson, 256 F. Supp. 962; Connor v. Johnson, 265 F. Supp. 492; Connor v. Johnson, 330 F. Supp. 506.Recognition that a State may properly seek to protect the integrity of political subdivisions or historical boundary lines permits no more than "minor deviations" from the basic requirement that legislative districts must be "as nearly of equal population as is practicable." Roman v. Sincock, 377 U.S. at 377 U. S. 710; Reynolds v. Sims, supra at 377 U.S. 577. The question is one of degree. In Chapman v. Meier, however, it was established that the latitude in court-ordered plans for departure from the Reynolds standards in order to maintain county lines is considerably narrower than that accorded apportionments devised by state legislatures, and that the burden of articulating special reasons for following such a policy in the face of substantial population inequalities is correspondingly Page 431 U. S. 420 higher. The District Court failed here to identify any such "unique features" of the Mississippi political structure as would permit a judicial protection of county boundaries in the teeth of the judicial duty to "achieve the goal of population equality with little more than de minimis variation." Chapman v. Meier, supra at 420 U. S. 26-27.Under the less stringent standards governing legislatively adopted apportionments, the goal of maintaining political subdivisions as districts sufficed to justify a 16.4% population deviation in the plan for the Virginia House of Delegates. Mahan v. Howell, 410 U. S. 315. But, in Mahan, there was uncontradicted evidence that the legislature's plan "produces the minimum deviation above and below the norm, keeping intact political boundaries.'" Id. at 410 U. S. 326. By contrast, the plaintiffs in this case submitted to the District Court an alternative Senate plan that served the state policy against fragmenting county boundaries better than did the plan the court ultimately adopted, and also came closer to achieving districts that are "as nearly of equal population as is practicable." Reynolds v. Sims, supra at 377 U.S. 577. The 19 county boundaries cut by the court plan would have been reduced to 15 in the so-called "Modified Henderson Plan" submitted by the plaintiffs; the maximum population deviation in any district would have been reduced from 16.5% to 13.66%, and the number of districts deviating by more than 5% from the population norm, plus or minus, would have been reduced from 15 to 9. As in Chapman,"our reference to the [Henderson] plan is to show that the factors cited by the District Court cannot be viewed as controlling and persuasive when other, less statistically offensive, plans already devised are feasible."420 U.S. at 420 U. S. 26. See also Kilgarlin v. Hill, 386 U. S. 120, 386 U. S. 124; Swann v. Adams, 385 U. S. 440, 385 U. S. 445-446.In the absence of a convincing justification for its continued adherence to a plan that even in state policy terms is less efficacious than another plan actually proposed, there can be Page 431 U. S. 421 no alternative but to set aside the District Court's decree for its failure to embody the equitable discretion necessary to effectuate the established standards of the Equal Protection Clause. [Footnote 19]IIISince the District Court's legislative reapportionment decree is invalid under the elementary standards of Reynolds v. Sims, we do not reach the more particularized challenges to certain aspects of that reapportionment plan made by the plaintiff challenges based upon claims that the plan's apportionment of some districts impermissibly dilutes Negro voting strength. Swann v. Adams, supra at 385 U. S. 446-447. [Footnote 20] Page 431 U. S. 422 But since the 1979 elections are on the horizon and a constitutionally permissible legislative reapportionment plan for the State of Mississippi has yet to be drawn, it is appropriate to give some further guidance to the District Court with these challenges in mind. [Footnote 21] Cf. Chapman v. Meier, 420 U.S. at 420 U. S. 26.To support their claim of impermissible racial dilution, [Footnote 22] the plaintiffs point to unexplained departures from the neutral guidelines the District Court adopted to govern its formulation of a reapportionment plan -- departures which have the apparent effect of scattering Negro voting concentrations among a number of white majority districts. They point in particular to the District Court's failure adequately to explain its adoption of irregularly shaped districts when alternative plans exhibiting contiguity, compactness, and lower or acceptable population variances were at hand. The plaintiffs have referred us to two types of situations in which the District Court's decree fails to meet its own goal that legislative districts be reasonably contiguous and compact: in its subdivisions of large counties whose population entitles them to elect several legislative representatives to both houses, and in its aggregations of smaller counties to put together enough people to elect one legislator. Page 431 U. S. 423Hinds County exemplifies the large county problem. [Footnote 23] It is the site of the State's largest city, Jackson, and is the most populous Mississippi county, with a total of 214,973 residents, 84,064 of whom are Negroes. As are all Mississippi counties, Hinds is divided into five supervisory districts or "beats"; each beat elects one supervisor to sit on the Board of Supervisors, which is charged with executive and judicial local government responsibilities. The Board of Supervisors reapportioned itself in 1969, creating five oddly shaped beats that extend from the far corners of the county in long corridors that fragment the city of Jackson, where much of the Negro population is concentrated. See Kirksey v. Board of Supervisors of Hinds County, 402 F. Supp. 658 (SD Miss.), aff'd, 528 F.2d 536 (CA5), awaiting decision after rehearing en banc. The irregular shapes of the beats were assertedly justified as necessary to achieve equalization of road mileage, bridges, and land area among the districts, so as to equalize the primary responsibilities of the supervisors -- maintenance of the roads and bridges. [Footnote 24] Whatever may be the validity of those justifications for a Hinds County Board of Supervisors' apportionment first adopted in 1969, they are irrelevant to the problem of apportioning state senate seats, whose holders will presumably concern themselves with something other than maintaining roads and bridges. The District Court nevertheless concluded that each Hinds County beat should elect one Senator. Page 431 U. S. 424The District Court did not explain its preference for the Hinds County Board of Supervisors' plan, although it did note generally that "we have had to take the Counties, Beats, and [voting] precincts as they actually are." There is, however, no longstanding state policy mandating separate representation of individual beats in the legislature. [Footnote 25] And there is no practical barrier that requires apportioning a large county on the basis of beat lines; Mississippi's 410 beats are in turn divided into 2,094 voting precincts, each of which is sufficiently small as the basic voting unit to allow considerable flexibility in putting together legislative districts. On this record, neither custom nor practical necessity can thus be said to justify reliance for state senatorial districting purposes upon the beats adopted by the Hinds County Board of Supervisors to govern their own election.The District Court's treatment of Jefferson and Claiborne Counties illustrates a departure from its own announced standards in aggregating small counties to form a single-member legislative district. Jefferson and Claiborne Counties are contiguous counties on the western border of Mississippi. Claiborne has a total population of 10,086, of whom 7,522 are Negroes. Jefferson has a total population of 9,295 of whom 6,996 are Negroes. The plaintiffs suggested combining these two counties with Copiah County to make a compact Senate district with a 55% Negro voting-age population. Instead, and without explanation, the District Court combined Claiborne County with Lincoln County and with Beat 3 of Copiah County to make a white majority senatorial district; Jefferson County was combined with Beats 1, 2, 4, and 5 of Adams Page 431 U. S. 425 County to make an irregularly shaped senatorial district with a slight Negro voting-age majority. Compared to the plaintiffs' proposals, the District Court's senatorial districts are less compact, and in addition require the fragmentation of two counties while the plaintiffs' proposal would have fragmented none.Such unexplained departures from the results that might have been expected to flow from the District Court's own neutral guidelines can lead, as they did here, to a charge that the departures are explicable only in terms of a purpose to minimize the voting strength of a minority group. The District Court could have avoided this charge by more carefully abiding by its stated intent of adopting reasonably contiguous and compact districts, and by fully explaining any departures from that goal.Twelve years have passed since this litigation began, but there is still no constitutionally permissible apportionment plan for the Mississippi Legislature. It is therefore imperative for the District Court, in drawing up a new plan, to make every effort not only to comply with established constitutional standards, but also to allay suspicions and avoid the creation of concerns that might lead to new constitutional challenges. [Footnote 26] In view of the serious questions raised concerning the purpose and effect of the present decree's unusually shaped legislative districts in areas with concentrations of Negro population, the District Court on remand should either draw legislative districts that are reasonably contiguous and compact, so as to put to rest suspicions that Negro voting strength is being impermissibly Page 431 U. S. 426 diluted, or explain precisely why, in a particular instance, that goal cannot be accomplished.The task facing the District Court on remand must be approached not only with great care, but with a compelling awareness of the need for its expeditious accomplishment, so that the citizens of Mississippi at long last will be enabled to elect a legislature that properly represents them.Reversed

U.S. Supreme CourtConnor v. Finch, 431 U.S. 407 (1977)Connor v. FinchNo. 76-777Argued February 28, 1977Decided May 31, 1977*431 U.S. 407Syllabus1. The Federal District Court's legislative reapportionment plan for Mississippi's Senate and House of Representatives held not to embody the equitable discretion necessary to effectuate the standards of the Equal Protection Clause of the Fourteenth Amendment in that the plan failed to meet that Clause's most elemental requirement that legislative districts be "as nearly of equal population as is practicable." Reynolds v. Sims, 377 U. S. 533, 377 U.S. 577. Pp. 431 U. S. 413-421.(a) A court is held to stricter standards than a state legislature in devising a legislative reapportionment plan, and"unless there are persuasive justifications, a court-ordered reapportionment plan of a state legislature must avoid use of multimember districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimis variation."Chapman v. Meier, 420 U. S. 1, 420 U. S. 26-27. Here, where the District Court's plan departed from the "population equality" norm in deference to Mississippi's historic respect for the integrity of county boundaries in conjunction with legislative districts, the resulting maximum population deviations of 16.5% in the Senate districts and 19.3% in the House districts cannot be characterized as de minimis. Pp. 431 U. S. 414-417.(b) "With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features," Chapman v. Meier, supra, at 420 U. S. 26, and the District Court failed here to identify any such "unique features" of the Mississippi political structure as would permit a judicial protection of county boundaries in the teeth of the judicial duty to "achieve the goal of population equality with little more than de minimis variation." Pp. 431 U. S. 417-420. Page 431 U. S. 4082. With respect to the claim that the District Court plan's reapportionment of some districts impermissibly dilutes Negro voting strength, the District Court on remand should either draw legislative districts that are reasonably contiguous and compact, so as to put to rest suspicions that Negro voting strength is being purposefully diluted, or explain precisely why in a particular instance that goal cannot be accomplished. Pp. 431 U. S. 421-426.Reversed and remanded.STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined, and in Parts I and II of which BURGER, C.J., and BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, in which BURGER, C.J., joined, post, p. 431 U. S. 426. POWELL, J., filed a dissenting opinion, post, p. 431 U. S. 430. REHNQUIST, J., took no part in the consideration or decision of the cases.